WINDOWS MEDIA TECHNOLOGY PROMOTION AGREEMENT
The purpose of this agreement (the "AGREEMENT") is to set forth the terms upon
which Microsoft Corporation ("MICROSOFT") will promote certain of your company's
web content in consideration of your company's adoption of specified Microsoft
Windows Media Technology for your web content and promotion of such technology.
This Agreement refers to your company as "ICP."
This Agreement is entered into with reference to the following information ("ICP
Table") and incorporates Microsoft's Standard Terms and Conditions attached
hereto as Attachment B ("STANDARD TERMS AND CONDITIONS") and all other schedules
and attachments referenced herein:
ICP INFORMATION: Corporate Name: ▇▇▇▇▇▇▇▇▇ Communications, Inc.
Place of Incorporation: Nevada
Address for Notices: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------------- ----------------------------------------------------
ICP CONTACT: ICP Contact/Title: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
------------------------------------------------- ----------------------------------------------------
ICP CONTENT MODULE MANAGER AND ICP Content Module Manager: ▇▇▇▇ ▇▇▇▇▇
STREAMING CONTENT MANAGER: Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
(2 technical contacts required) E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
ICP Streaming Content Manager: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
------------------------------------------------- ----------------------------------------------------
ICP NAME AND ICP SERVICE NAME ICP Name: ▇▇▇▇▇▇▇▇▇ Communications
(as requested for press release): ICP Service Name(s): ▇▇▇▇.▇▇▇
------------------------------------------------- ----------------------------------------------------
"ICP SITE LINK" (includes successors ▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇.▇▇▇
thereto):
------------------------------------------------- ----------------------------------------------------
"ICP SITE PAGE(S)" ▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇,
(includes successors thereto): ▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------------- ----------------------------------------------------
"FEATURED TECHNOLOGY" _x_ Windows Media Player
(only the checked options apply): ___ Windows Radio toolbar
Attachment A relating to the Featured Technology is also
referred to as the "FEATURED TECHNOLOGY SCHEDULE".
------------------------------------------------- ----------------------------------------------------
"PROMOTION START DATE": August 30, 1999 on two of the four sites and September 30,
1999 on the remaining sites.
------------------------------------------------- ----------------------------------------------------
"TERRITORY": United States of America
------------------------------------------------- ----------------------------------------------------
"TERM": Beginning August 9,1999 and continuing through December
30, 2001 unless earlier terminated in accordance with Section
3.
------------------------------------------------- ----------------------------------------------------
MICROSOFT OBLIGATIONS
a. WINDOWS MEDIA/RADIO STATION GUIDE. Microsoft will use commercially
reasonable efforts during the Term, and consistent with Microsoft's
localization schedule for the applicable web site for the Territory, to
include a link (e.g., icon, text link and/or descriptive text) for the
ICP Site Link and, if provided, brief summaries of the content
available via such ICP Site Link ("CONTENT MODULES") in the following:
(only the checked options apply)
_x_ Microsoft ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇: a Microsoft web site at URL
▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and successors thereto ("MWM") in an appropriate
category and version of MWM designed for use in
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the Territory. Microsoft will determine, in its sole discretion, the placement
of any ICP Site Links and Content Modules within the MWM.
___ RADIO STATION GUIDE: a Microsoft web site at URL
▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, and successors thereto ("RSG") in an
appropriate category and version of RSG designed for use in the Territory.
Microsoft will determine, in its sole discretion, the placement of any ICP Site
Links and Content Modules within the RSG.
Attachment D provides a representation of one manner in which the ICP Site Link
and Content Modules may appear.
The foregoing obligations will be subject to Microsoft's right to remove any ICP
Site Link and/or Content Modules immediately upon receiving a claim from any
source that the ICP Site or a Content Module includes or has included any
content which violates any applicable law or which would expose Microsoft, in
its reasonable estimation, to potential civil or criminal liability.
b. NO LICENSE. Nothing in this Agreement grants ICP any rights to any
Microsoft software, technology or other intellectual property rights.
Microsoft retains all right, title and interest in and to the Featured
Technology, MWM and RSG.
c. REPORTS. For each month during the Term, Microsoft will use commercially
reasonable efforts to report to ICP the referrals from MWM and/or RSG to
ICP Site Pages.
1. ICP OBLIGATIONS
a. PROMOTION OF FEATURED TECHNOLOGY. Throughout the Term, ICP will use and
promote the Featured Technology as follows:
(1) FEATURED TECHNOLOGY PROMOTION. Beginning no later than the Promotion
Start Date (or, if later, the Effective Date), ICP will include a
prominent, "Above the fold" promotion of each Featured Technology on
all ICP Site Pages and will include other promotions, as may be
designated in the Featured Technology Schedule (collectively, the
"FEATURED TECHNOLOGY PROMOTION"). For purposes of this Section 2a.,
"ABOVE THE FOLD" means the placement of content (including an icon
and/or link) or other material on an ICP Site Page such that the
material is viewable on a computer screen at a 800 x 600 pixels
resolution when the user first accesses such web page and without
having to scroll down to view more of the web page. The Featured
Technology Promotion shall be carried out by ICP in accordance with the
specifications set forth in the Featured Technology Schedule and as
follows:
(a) If under Section 1.a the ICP Site Link and Content Modules will
be included in MWM, ICP will use commercially reasonable efforts
to provide the following on ICP Site Pages: i) a link to ICP's
Windows Media Player-compatible streaming media with text
describing the technology for playing it such as "View/Listen
using Windows Media Player", and ii) a link and/or logo for
downloading the Windows Media Player (as shown in version 1 of the
page layout diagrams in Attachment E). To enhance the user
experience, if the ICP is providing headlines for the main page of
MWM, the ICP will display only that content compatible with, and
only those webcast media player logos for, the Windows Media
Player on ICP Site Pages linked directly from the ICP Site Links
and Content Modules on the MWM main page. To enhance the user
experience, if the ICP is providing headlines for pages other than
the main page of MWM, the ICP will use commercially reasonable
efforts to, within sixty (60) days of Effective Date, display only
that content compatible with, and only those webcast media player
logos for, the Windows Media Player on ICP Site Pages linked
directly from the ICP Site Links and Content Modules on MWM pages
other than the MWM main page.
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(b) If under Section l.a the ICP Site Link and Content Modules will be
included in RSG, ICP will use commercially reasonable efforts to
provide the following on ICP Site Pages: i) links to ICP's Windows
Media Player-compatible streaming media with text describing the
technology for playing it such as "Listen using Windows Radio
toolbar," and "Listen using Windows Media Player," and ii) a link
and/or logo for downloading the Windows Media Player (as shown in
version 2 of the page layout diagrams in Attachment E).
(2) DAILY LINKS. ICP will use commercially reasonable efforts to provide
Microsoft with ICP Site Links and Content Modules, on a daily basis,
that meet the Content Guidelines, as defined in the Featured Technology
Schedule and as reasonably updated by Microsoft and provided to ICP
from time to time, for use in accordance with this Agreement.
b. TRADEMARK PERMISSION. To the extent the ICP Site Link contains or
constitutes a trademark, service ▇▇▇▇ or other similar intellectual
property ("▇▇▇▇"), ICP hereby grants to Microsoft a non-exclusive,
non-transferable, royalty-free, perpetual, worldwide right and license to
use and display such ▇▇▇▇ solely for purposes of inclusion in MWM, RSG,
other Microsoft web sites, and as part of the favorites or comparable
sections of Internet Explorer and/or Windows Media Player.
c. CONTENT MODULES. To the extent containing any information protected by
copyright or other intellectual property, ICP hereby grants Microsoft a
non-exclusive, non-transferable, royalty-free, perpetual, worldwide right
and license to use, copy, publicly perform and display, transmit and
distribute Content Modules solely for purposes of inclusion of such Content
Modules on MWM, RSG, other Microsoft web sites, and as part of the
favorites or comparable sections of Internet Explorer and/or Windows Media
Player.
d. DEMONSTRATION RIGHTS. ICP hereby further grants Microsoft a non-exclusive,
non-transferable, royalty-free, perpetual, worldwide right and license to
use and publicly perform and display the ICP Name, ICP Service Name,
Content Modules, screen shots and/or interactive versions of the ICP Site
solely for the purposes of demonstrating ICP's use of the Featured
Technology at trade shows or other industry or press events and other
advertising and promotional activities concerning Internet Explorer, the
Featured Technology and/or MWM and RSG.
e. REPORTS. By the tenth (10th) day of each calendar month during the Term
(other than the month in which the Effective Date falls), ICP will provide
a report to Microsoft in the format of, and with all information concerning
the previous calendar month as described in the Featured Technology
Schedule in Attachment A and as reasonably updated by Microsoft and
provided to ICP from time to time. In the event that ICP has failed to
provide a report as described in the preceding sentence on or before the
fifteenth (15th) day of the relevant calendar month, then Microsoft will be
entitled to suspend its performance under this Agreement until such report
has been received. All information provided pursuant to this section will
be deemed to be Confidential Information (as defined in the Standard Terms
and Conditions) of ICP and, in addition to Microsoft's obligations with
respect to Confidential Information under the Standard Terms and
Conditions, such Confidential Information shall not be disclosed to
Microsoft employees or contractors outside of its
platforms/systems/applications groups; in addition, within those groups,
Microsoft shall use reasonable efforts to limit disclosure to employees or
contractors with a reasonable "need to know" to further Microsoft's
performance under this Agreement and its performance of general NetShow and
Windows Media Player marketing activities.
3. RENEWAL
This Agreement will be automatically extended for additional ninety (90) day
period(s) unless either party suspends performance and/or terminates this
Agreement upon written notice thirty (30) days before the end of the original
Term or an extended Term.
4. TERMINATION
a. Either party may suspend performance and/or terminate this Agreement
immediately upon written notice at any time if the other party is in
material breach of any material warranty, term, condition or covenant of
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this Agreement, and fails to cure that breach within thirty (30) days after
written notice thereof, or, in the case of a material breach of Section A
of the Standard Terms and Conditions regarding confidentiality, immediately
upon written notice at any time without providing initial notice or an
opportunity to cure. Termination of this Agreement shall be the sole remedy
for a party for failure of the other party to provide the guaranteed
minimum impressions as set forth in this Agreement.
b. Neither party will be liable to the other for damages of any sort resulting
solely from terminating this Agreement in accordance with its terms.
Termination of this Agreement will not affect any other agreement between
the parties. In the event of termination or expiration of this Agreement
for any reason, Section 1.b, 2.b-d, and the Standard Terms and Conditions
in Attachment B will survive (or, where separately specified in each such
section, will survive in accordance with the terms in such section).
IN WITNESS WHEREOF, the parties have entered into this Agreement, including all
schedules and attachments referenced herein, as of the Effective Date.
COMPANY MICROSOFT CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ Beucheuel
Name (print): ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name (print): ▇▇▇▇ Buecheuel
Title: CEO Title: Director Bus. Dev.
Date: 8/23/99 Date: 9/2/99
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ATTACHMENT A
FEATURED TECHNOLOGY SCHEDULE
I. RELEVANT TECHNOLOGY (check all that apply)
_x_ Windows Media Player
__ Windows Radio toolbar
II. IMPLEMENTATION REQUIREMENTS FOR WINDOWS MEDIA PLAYER AND/OR WINDOWS RADIO
TOOLBAR
a. ICP SITE PAGES: The parties agree that the primary focus of the ICP Site
Pages will be to make available high quality streaming media that is useful
and interesting in and of itself to end users of both the ICP Site and MWM
and/or RSG. ICP will use and promote the Featured Technology in accordance
with this Agreement and, in addition, at least as favorably as ICP uses and
promotes any third party streaming media technology, including without
limitation with respect to: (i) quality of user experience, (ii) encoding
rates, (iii) bandwidth allocation, and (iv) promotion of the Featured
Technology. ICP shall include on the home page of ICP Site a direct link to
ICP Site Pages. ICP shall ensure that the ICP Site Pages have an
architecture optimized for high quality streaming media performance, with
at least one hundred (100) simultaneous connections and a maximum peak
bandwidth use of no more than two (2) hours in any twenty-four (24) hour
period. In the event that peak bandwidth use exceeds two (2) hours in any
twenty-four (24) hour period, ICP shall increase the bandwidth allocated
for use by the Featured Technology to a commercially reasonable degree in
order to offer a reasonable user experience. ICP shall offer end users high
quality streaming media, including by complying with the following:
1) FM stations are to be encoded in at least 16 kbit (e.g. Voxware AC
16-16000 mono) and/or
2) AM stations are to be encoded in at least 8 kbit (e.g. Voxware AC
8-11025 mono).
3) All on-demand videos are to be encoded in multiple data rates (at
least 22 kbit & 37 kbit streams).
4) All streaming media must use either MPEG 4 v.2 video codec,
Voxware Metasound audio codec, ▇▇▇▇▇.▇▇▇ audio codec or Sipro's
ACELP codec instead of the Voxware Metasound codec if the content
is speech.
5) All streaming media must demonstrate correct selection of audio
codecs and, if video, appropriate video output parameter settings
(frame size/ frame rate etc), all based on content type and total
data rate for the file.
6) ICP must offer some streaming media in Windows Media
Player-compatible format without charge to MWM and/or RSG end
users on ICP Site Pages. In addition, ICP must offer the most
popular streaming media, in ICP's reasonable estimation, in
Windows Media Player-compatible format within the ICP Site Pages.
7) All streaming media must be updated at least five (5) times per
week.
8) All radio stations should stream content twenty-four (24) hours
per day.
b. The parties agree that ICP will control in its sole discretion all data,
text, audio, video, graphics, photographs, artwork and other technology and
materials on the ICP Site Pages ("ICP CONTENT"). Notwithstanding the
preceding sentence, ICP will comply with all obligations with respect to
such ICP Content set forth in this Featured Technology Schedule or
otherwise set forth in this Agreement.
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III. TECHNOLOGY IMPLEMENTATION SCHEDULE/TIMETABLE
DATE (no later than) OBLIGATION
---- ----------
As soon as possible ICP shall provide Microsoft with alpha versions of (i)
the ICP Site Pages (i.e. provide the URLs), (ii) the
Content Modules and, (iii) if applicable, the URL for the
streaming media to be listed in the RSG
--------------------------- ----------------------------------------------------------
ICP shall commence daily updates of (i) the beta version
of the ICP Site Pages, (ii) the Content Modules and, (iii)
if applicable, the streaming media to be listed in the
RSG
--------------------------- ----------------------------------------------------------
ICP Site Pages, Content Modules and, if applicable, the
streaming media listed in the RSG shall be available live
on the Web, all as in compliance with this Agreement,
including this Featured Technology Schedule
--------------------------- ----------------------------------------------------------
IV. FEATURED TECHNOLOGY PROMOTION
Display on the main page of the ICP Site, at least ten thousand (10,000) ad
impressions per month
V. CONTENT MODULE EDITORIAL GUIDELINES
a. General Requirements
--------------------
1. To provide Content Modules under this Agreement, ICP shall follow
these general requirements:
(A) Each headline, schedule and event should have a separate
page and URL so Read/Unread behavior works properly.
(B) ICP will provide a URL location to retrieve ICP's CDF files
in accordance with the following guidelines:
o The subdirectory on ICP's Site for staging the CDF file(s)
should be denoted "webevents."
o The CDF file names for headlines, events, and schedule
content should be denoted as headlines.cdf, event.cdf, and
schedule.cdf, respectively.
2. The Content Modules must work on Internet Explorer 3.x, 4.x and 5.x
and Netscape Communicator 3.x and 4.x. ICP must also ensure that Content Modules
work with new versions of each such browser within one (1) week of such new
version's post-beta commercial release to the Web.
3. Updates to these requirements, detailed technical specifications and
web-based support on how to provide Content Modules is provided on
▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇. Technical questions should be directed to
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇.
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b. Editorial Requirements
----------------------
To provide a Content Module under this Agreement, ICP shall follow these
editorial requirements:
1. All headlines should not exceed fifty (50) characters.
2. All headlines should be underlined up through (but not beyond) the
last character of the headline. This can be prevented by not
having an additional space character at the very end.
3. All headlines should end without a period.
4. All headlines should have only the initial word and any proper
nouns capitalized (sentence-style capitalization not
headline-style capitalization).
5. All links should go directly to the specific article or ICP
Content, i.e., "deep" link, using anchor tags. It is an
unacceptable user experience to link (i) to the top of page when
the article is further down, (ii) to home pages that do not
contain the applicable ICP Content, or (iii) to a table of
contents instead of directly to the specific ICP Content.
6. All headlines and events should be updated at least once each week
day (weekend days at ICP's option), or more frequently, depending
on mutual agreement.
c. Testing
-------
Microsoft may in its discretion test Content Modules in the MWM and RSG test
environment prior to posting in production environment. No testing or other
quality control efforts of Microsoft in connection with activities contemplated
by this Agreement will be deemed to modify ICP's obligations to comply with the
Agreement, including the guidelines set forth in this Featured Technology
Schedule, and Microsoft will have no responsibility for identifying or
addressing any errors in ICP Content Modules.
d. Escalation Procedures
---------------------
In the event ICP's Content produces a critical error, Microsoft reserves the
right to pull the applicable Content Module within thirty (30) minutes of
discovery. A critical error is defined as:
1. A Content Module which includes a link that produces an HTTP error,
2. A Content Module which causes other Content Modules to be corrupt or to
malfunction,
3. A Content Module which is empty.
In the event a Content Module needs to be pulled from the Microsoft Internet web
site, Microsoft will notify ICP immediately and will use commercially reasonable
efforts to communicate with ICP to facilitate ICP's determination of the cause
of the error.
ICP will provide two (2) technical contacts for technical staff working on MWM
and RSG to use in the event of any Content Module problems. If ICP encounters
any problems on MWM or RSG, one of such technical contacts should email
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇.
VI. ICP REPORTING GUIDELINES
In accordance with Section 2.e of this Agreement, ICP shall provide a report to
Microsoft setting forth the following information:
(a) The URL and number of page views for the ICP Site Pages;
(b) The number of referrals of end users from ICP Site to ICP's and/or
Microsoft's Windows Media Player download site(s);
(c) The number of referrals received by ICP as a result of Web users'
clicking on the ICP links displayed on the Microsoft Web Sites;
(d) Web browsing software share and Streaming Media player share
information for ICP Site Pages; include version information;
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(e) The number of streams served, including the total number of ASX and ASF
format files served, by bit rate;
(f) The average length of user stream for a single connection;
(g) The number of streams of pages with feature/streaming technology; and
(h) The average number of .asx files on site.
ICP shall provide all reports hereunder to Microsoft via Microsoft's web
reporting system located at ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇.▇▇▇ web site, and successors
thereto.
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ATTACHMENT B
STANDARD TERMS AND CONDITIONS
A. CONFIDENTIALITY
1. CONFIDENTIALITY OBLIGATIONS. Each party will protect the other's
Confidential Information (as defined below) disclosed in connection
with this Agreement from unauthorized dissemination and use with the
same degree of care that such party uses to protect its own like
information. Neither party will use the other's Confidential
Information for purposes other than those necessary to directly further
the purposes of this Agreement. Neither party will disclose to third
parties the other's Confidential Information without the prior written
consent of the other party. Except as expressly provided in this
Agreement, no ownership or license rights are granted in any
Confidential Information. The other provisions of this Agreement
notwithstanding, either party will be permitted to disclose the
Confidential Information to its outside legal and financial advisors;
and to the extent required by applicable law, provided however that
before making any such required filing or disclosure, the disclosing
party will first give written notice of the intended disclosure to the
other party, within a reasonable time prior to the time when disclosure
is to be made, and the disclosing party will exercise best efforts, in
cooperation with and at the expense of the other party, consistent with
reasonable time constraints, to obtain confidential treatment for all
non-public and sensitive provisions of this Agreement, including
without limitation dollar amounts and other numerical information.
2. DEFINITION. As used herein, "Confidential Information" means: (a) any
source code of software; (b) any trade secrets and/or other proprietary
non-public information not generally known relating to either party's
product plans, designs, costs, prices and names, finances, marketing
plans, business opportunities, personnel, research, development or
know-how; and (c) the terms and conditions of this Agreement.
"Confidential Information" does not include information that: (i) is or
becomes generally known or available by publication, commercial use or
otherwise through no fault of the receiving party; (ii) is known and
has been reduced to tangible form by the receiving party at the time of
disclosure and is not subject to restriction; (iii) is independently
developed by the receiving party; (iv) is lawfully obtained from a
third party that has the right to make such disclosure; or (v) is made
generally available by the disclosing party without restriction on
disclosure.
3. LIMITATIONS. The parties' obligations of confidentiality under this
Agreement will not be construed to limit either party's right to
independently develop or acquire products without use of the other
party's Confidential Information. Further, either party will be free to
use for any purpose the residuals resulting from access to or work with
such Confidential Information, provided that such party will maintain
the confidentiality of the Confidential Information as provided herein.
The term "residuals" means information in non-tangible form, which may
be retained by persons who have had rightful and good faith access to
the Confidential Information, including ideas, concepts, know-how or
techniques contained therein. Neither party will have any obligation to
limit or restrict the assignment of such persons or to pay royalties
for any work resulting from the use of residuals. However, the
foregoing will not be deemed to grant to either party a license under
the other party's copyrights or patents.
B. WARRANTIES
Each party warrants and covenants that it has the full power and authority to
enter into and perform according to the terms of this Agreement.
C. DISCLAIMER OF FURTHER WARRANTIES
ANY AND ALL SOFTWARE, CONTENT, SERVICES, OTHER MATERIALS AND CONFIDENTIAL
INFORMATION PROVIDED BY EITHER PARTY TO THE OTHER HEREUNDER ARE PROVIDED "AS
IS," WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN SECTION B
ABOVE, EACH PARTY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR
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PURPOSE, TITLE AND NON-INFRINGEMENT, WITH RESPECT TO ANY MATERIALS OR
INFORMATION PROVIDED HEREUNDER.
D. INDEMNITY
1. INDEMNITY. ICP will, at its expense and Microsoft's request, defend any
claim or action brought by a third party against Microsoft, or
Microsoft's subsidiaries, affiliates, directors, officers, employees,
agents and independent contractors, to the extent it is based upon a
claim that any ICP Site, ICP Site Page, ICP Content, ICP Content
Modules or ICP Site Link (i) infringes or violates any patent,
copyright, trademark, trade secret, right of publicity, or other
intellectual property, proprietary or contractual right of a third
party, or (ii) contains defamatory or libelous material or material
which illegally discloses private or personal matters concerning any
person; or (iii) permits to appear or be uploaded any messages, data,
images or programs which are illegal, contain nudity or sexually
explicit content or are, by law, obscene, profane or pornographic; or
(iv) permits to appear or be uploaded any messages, data, images or
programs that would knowingly or intentionally (which includes imputed
intent) violate the property rights of others, including unauthorized
copyrighted text, images or programs, trade secrets or other
confidential proprietary information, or trademarks or service marks
used in an infringing fashion (such claims or actions being referred to
hereinafter as "ICP Claims"). ICP will indemnify and hold Microsoft
harmless from and against any costs, damages and reasonable fees
reasonably incurred by Microsoft, including but not limited to fees of
outside attorneys and other professionals, that are attributable to
such ICP Claims. Microsoft will: (a) provide ICP reasonably prompt
notice in writing of any such ICP Claims and permit ICP, through
counsel chosen by ICP and reasonably acceptable to Microsoft, to answer
and defend such ICP Claims; and (b) provide the entity defending such
claim information, assistance and authority, at such entity's expense,
to help defend such ICP Claims. ICP will not be responsible for any
settlement made by Microsoft without ICP's written permission, which
permission will not be unreasonably withheld or delayed. LCP will
consult with Microsoft on the choice of any counsel under this Section
D.
2. SETTLEMENT. Unless ICP obtains for Microsoft a complete release of all
ICP Claims thereunder, ICP may not settle any ICP Claim under this
Section D on Microsoft's behalf without first obtaining Microsoft's
written permission, which permission will not be unreasonably withheld
or delayed. Reasonable withholding of permission may be based upon,
among other factors, the ability for Microsoft to ship any product. In
the event ICP and Microsoft agree to settle an ICP Claim, ICP agrees
not to publicize the existence of or disclose terms of the settlement
without first obtaining Microsoft's written permission, which
permission will not be unreasonably withheld or delayed.
E. LIMITATION OF LIABILITIES
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL. INDIRECT,
INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR
BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT OR THE USE OF
OR INABILITY TO USE ANY MICROSOFT SOFTWARE OR SERVICES, OR EITHER PARTY'S
CONFIDENTIAL INFORMATION OR CONTENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
THIS SECTION SHALL NOT APPLY TO SECTION A OF THESE STANDARD TERMS AND CONDITIONS
REGARDING CONFIDENTIALITY, NOR TO ICP'S INDEMNITY OBLIGATIONS WITH RESPECT TO
THIRD PARTY CLAIMS AS PROVIDED IN SECTION D OF THESE STANDARD TERMS AND
CONDITIONS.
F. LOGO USE PROVISIONS
All use by ICP of the logos for the Featured Technology is subject to compliance
with Microsoft's guidelines and/or license provisions relating to the use of
logos and branding for such Featured Technology, including without limitation
the Get Windows Media Player Logo Program under the terms set forth in
Attachment C hereto.
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G. GENERAL TERMS
1. NOTICES. All notices and requests in connection with this Agreement
will be deemed given as of the day they are received either by
messenger, delivery service, or in the United States of America mails,
postage prepaid, certified or registered, return receipt requested, and
addressed as follows:
To ICP: see ICP Table
-------------------------------------------------------- -----------------------------------------------------
To Microsoft: Copy to:
Microsoft Corporation, One Microsoft Way Redmond, Microsoft Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Senior Director of Business Development, Attention: Law & Corporate Affairs
Personal and Business Systems Division
-------------------------------------------------------- -----------------------------------------------------
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------------------------------------- -----------------------------------------------------
or to such other address as a party may designate pursuant to this
notice provision.
2. INDEPENDENT PARTIES. Nothing in this Agreement will be construed as
creating an employer-employee relationship, a partnership, an agency
relationship, or a joint venture between the parties.
3. GOVERNING LAW. This Agreement will be governed by the laws of the State
of Washington, without reference to the conflict of law principles
thereof. Any action or litigation concerning this Agreement will take
place in the federal or state courts in King County, Washington, and
the parties expressly consent to jurisdiction of and venue in such
courts and waive all defenses of lack of personal jurisdiction and
forum non conveniens with respect to such courts. ICP hereby agrees to
service of process by mail or other method acceptable under the laws of
the State of Washington.
4. ATTORNEYS' FEES. In any action or suit to enforce any right or remedy
under this Agreement or to interpret any provision of this Agreement,
the prevailing party will be entitled to recover its costs, including
reasonable attorneys' fees.
5. ASSIGNMENT. This Agreement and any rights or obligations hereunder may
be assigned by Microsoft, but may not be assigned by ICP without
Microsoft's prior written approval. Any attempted assignment,
sublicense, transfer, encumbrance or other disposal without such
consent will be void and will constitute a material default and breach
of this Agreement. Except as otherwise provided, this Agreement will be
binding upon and inure to the benefit of the parties' successors and
lawful assigns.
6. FORCE MAJEURE. Neither party will be liable to the other under this
Agreement for any delay or failure to perform its obligations under
this Agreement if such delay or failure arises from any cause(s) beyond
such party's reasonable control, including by way of example labor
disputes, strikes, floods, fire, lightning, utility or communications
failures, earthquakes, vandalism, war, acts of terrorism, riots,
insurrections, embargoes, or laws, regulations or orders of any
governmental entity.
7. CONSTRUCTION. If for any reason a court of competent jurisdiction finds
any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the
maximum extent permissible so as to effect the intent of the parties,
and the remainder of this Agreement will continue in full force and
effect. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or
any other provision. This Agreement has been negotiated by the parties
and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor
of or against either party.
8. NOT EXCLUSIVE. Nothing in this Agreement will be deemed to restrict
either party's ability to license, develop, sub-license, manufacture,
deploy, support, promote, or distribute software, content, streaming
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February 18, 1999
media or any other technology, whether or not similar to the Featured
Technology, nor to preclude ICP from creating and supporting mirrored
versions of the ICP Site that are not subject to this Agreement.
9. ENTIRE AGREEMENT. This Agreement does not constitute an offer by
Microsoft and it will not be effective until signed by both parties.
This Agreement, including all schedules and attachments referenced
herein, constitutes the entire agreement between the parties with
respect to the subject matter hereof, and merges all prior and
contemporaneous communications with respect to such subject matter. It
will not be modified except by a written agreement dated subsequent to
the date of this Agreement and signed on behalf of ICP and Microsoft by
their respective duly authorized representatives.
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ATTACHMENT C
GET WINDOWS(R) MEDIA PLAYER
LOGO PROGRAM
Get Windows(R) Media Player logo usage instructions
---------------------------------------------------
To put the logo and link on your Web site, follow these easy steps:
1. Read our policy below on using the Get Windows Media Player logo.
2. Copy the Get Windows Media Player logo.gif file image to your desktop.
[picture of Windows Media Player logo here]
3. Move the Get Windows Media Player logo.gif file from your desktop to
your Web server.
4. Insert the following HTML code on your Web page. Be sure to point the
(IMG SRC) to the location of the Get Windows Media Player logo.gif file
on your server:
(BR)(CENTER)
(A HREF="▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇.▇▇▇">
![Get Windows Media Player]()