Web Hosting Agreement

SERVICES AGREEMENT







THIS SERVICES AGREEMENT (the "Agreement"), dated as of December 19, 1996 (the "Effective Date"), is between Electronic Data Systems Corporation, a Delaware corporation ("EDS"), and PointCast Incorporated, a California corporation ("PointCast").



BACKGROUND - ----------



WHEREAS, the Internet & New Media Business Unit of the Communications Industry Group of EDS has resources and experience to support the delivery of Internet, Intranet and New Media services, such as consulti ng, systems design, integration, development, administration and project management;



WHEREAS, PointCast is a company that desires to have electronic presence on the Internet by establishing and having EDS operate for it an additional data center in Plano, Texas ("the "PointCast Texas Data Center") to host PointCast's Internet servers and PointCast NetworkTM;



WHEREAS, PointCast may desire for EDS to provide to it during the term of this Agreement, for the benefit of PointCast and its viewers and customers of the PointCast Network, certain other Internet-related, information technology services on the terms and conditions set forth in this Agreement; and



WHEREAS, EDS is willing to provide such services on the terms and conditions set forth in this Agreement.



NOW, THEREFORE, EDS and PointCast hereby agree to the following:



1. DEFINITIONS.

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(a) "EDS Services" means the services to be performed by EDS under any Work



(b) "PCN" means the PointCast NetworkTM, a network of servers that delivers

news and information content over the Internet to Viewers via PCN Clients

on the Viewers' desktop computers.



(c) "PCN Client" means the portion of the PointCast software for PCN which

resides on the hard disk of the Viewer's desktop computer and functions as

an Internet-aware screen saver, customized content transmitter, WWW browser

and animated advertisement player capable of delivering information via



(d) "Technology" means deliverables specifically required by a Work Order

to be created by EDS for PointCast and delivered to PointCast, including,

without limitation, the assignment of copyrights in all such deliverables

to PointCast.



(e) "Viewer" means a user who accesses PCN using a PCN Client.



(f) "Work Order" means a supplement to this Agreement in the form of an

Amendment executed by the parties from time to time and attached to a copy

of this Agreement which describes services to be provided by EDS,

PointCast's obligations relating thereto and the payment terms for such

services, all as more particularly described in Section 2 below.



2. WORK ORDERS.

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From time to time during the Term of this Agreement, EDS and PointCast may

execute a Work Order for agreed upon services to be provided by EDS, the

applicable acceptance criteria and performance standards for such work, the

support obligations of PointCast, and the payment obligations of PointCast

under this Agreement. Each such Work Order shall consist of a Schedule A

describing the services to be delivered by and other obligations of EDS,

a Schedule B describing the obligations of PointCast, and a Schedule C

describing the payment obligations of PointCast. Each such Work Order

shall be signed by authorized representatives of both parties and shall

be attached to this Agreement and, when so executed and attached, shall

be subject to the terms and conditions of this Agreement. Work Orders

shall be numbered









consecutively beginning with number 1, attached hereto. If there is a conflict between the terms of this Agreement and the terms of any Work Order, the terms of the Work Order shall take precedence.



3. EDS SERVICES.

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(a) EDS will provide the EDS Services to PointCast pursuant to the terms

and conditions of this Agreement, including the applicable Work

Order. Each Work Order when attached to this Agreement shall be

incorporated herein by reference.



(b) The EDS Services will be undertaken at various PointCast or EDS

sites to be identified and mutually agreed upon by the parties and

identified in the applicable Work Order (the "Facilities").



4. TERM. The term of this Agreement will begin on the Effective Date and

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will end on the third anniversary of the Effective Date, unless sooner

terminated as provided in this Agreement, and shall automatically renew

for successive one year periods for so long as there are outstanding

obligations of the parties under any Work Order attached hereto. The term

of this Agreement may be extended by the mutual written agreement of the

parties. If the term is extended because of outstanding obligations of

the parties under and Work Order, the Agreement will terminate as soon as

such obligations have been performed.



5. ACCOUNT MANAGERS. Within 24 hours of signing this Agreement, EDS and

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PointCast shall each designate and maintain, respectively, a

representative who will be the primary point of contact of such party in

dealing with the other with respect to the EDS Services (each, the

respective party's "Account Manager"). If called for in an applicable

Work Order, each party shall provide the other party's Account Manager at

no charge to such other party with furnished office space, administrative

support, and voice and data networking services in the host party's

facility. The Account Manager of each party will have the authority and

power to make decisions with respect to actions to be taken by such party

in connection with the EDS Services within the scope of this Agreement

and the attached Work Orders. EDS and PointCast shall mutually consult

regarding the nomination of and shall have the right to request

replacement of the other party's Account Manager and other key team

members described in the applicable Work Order, and the party to which

the request has been made will consult with the requesting party on the

selection of a replacement and will use reasonable efforts to accommodate

the request as promptly as is practicable.



6. COMPENSATION; BOOKS AND RECORDS. EDS shall not be entitled to

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compensation for any services which are not authorized in an applicable

Work Order unless such services have been authorized in advance in

writing by the PointCast Account Manager in the form of an executed

modification to such Work order. If EDS is to be reimbursed for costs and

expenses incurred in connection with the EDS Services or for any EDS

Services performed on other than a fixed-price basis, EDS shall maintain

comprehensive books and records to substantiate both the services and

expenses. Such books and records will be retained by EDS for a period of

at least two (2) years from and after the completion of the services to

which they apply. PointCast or its designated agent shall have the right

to audit such records at all reasonable times upon five (5) business

days' prior written notice to EDS. In no event will PointCast have the

right to review any records related to other customers of EDS.



7. PAYMENTS; REIMBURSEMENT. PointCast will pay EDS the aggregate of the

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amounts described in Schedule C of the applicable Work Order in

accordance with the payment provisions set forth in such Schedule C. If

any Work Order calls for reimbursements of EDS by PointCast for travel

and other expenses, the following terms and conditions shall apply: EDS

agrees to use its best efforts to keep travel and living expenses as

economical as possible and within a moderate range. Absent PointCast's

prior written approval, PointCast will not be liable to reimburse EDS for

airfare in excess of coach class. Reimbursable expenses shall include

travel and related lodging and meals, long-distance telephone charges,

postage and other shipping charges. Expenses for facsimile, duplication,

supplies, word-processing and local telephone charges will be borne by

EDS and will not be chargeable to PointCast. EDS shall secure PointCast's

written approval prior to incurring any individual reimbursable

expenditure exceeding five hundred dollars ($500) in connection with the

EDS Services. EDS will bill PointCast monthly at EDS' cost for all such

routine reimbursable charges, and payment will be due within thirty (30)

days of receipt of EDS' properly submitted invoice. All invoices

submitted to PointCast by EDS for any expenses for which EDS claims

reimbursement shall include a detailed listing of all out-of-pocket

disbursements together with supporting documentation, including, without

limitation, copies of hotel bills and airline tickets.





8. POINTCAST OBLIGATIONS.

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During the term of this Agreement and in addition to its other obligations

set forth in this Agreement, PointCast, at its cost and expense, will have

the responsibilities assigned to it in Schedule B to each of the Work

Orders attached hereto from time to time.





9. EMPLOYEE BENEFITS. The EDS personnel performing the EDS Services will be

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and remain the employees of EDS, and EDS will provide for and pay the

compensation and other benefits of such employees including salary, health,

accident and workers' compensation benefits and all taxes and contributions

which an employer is required to pay relating to the employment of





10. HIRING OF EMPLOYEES. The parties agree that, during the term of this

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Agreement and for a period of 12 months thereafter, neither party will,

except with the prior written consent of the other, offer employment to or

employ any person who is employed by the other party (or any person who is

a subcontractor to the other party or an employee thereof) and who has been

introduced to the other party in connection with this Agreement.





11. PROPRIETARY RIGHTS.

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(a) POINTCAST INFORMATION. As between PointCast and EDS, information relating

to PointCast, PCN, PointCast's affiliates, Viewers and customers of PCN and

the PCN Client and other PointCast software will remain the sole and

exclusive property of PointCast. EDS is hereby authorized during the term

of this Agreement to have access to and to make use of such information

only to the extent necessary for the performance of its obligations

hereunder. EDS' access and use of such information shall be governed by

the terms of Section 12.



(b) TECHNOLOGY. Unless otherwise agreed by the parties in writing in the

applicable Work Order, PointCast shall own the copyright in and to the

Technology (and all renewals and extensions thereof). EDS hereby makes a

full, irrevocable assignment, in perpetuity, to PointCast, of the

Technology and such copyrights.



(c) FURTHER ASSURANCES. EDS shall, and shall cause any parties acting under it

in relation to this Agreement, to execute any and all documents and do such

other acts requested at any time by PointCast as may be required to

evidence, confirm and/or further effect the rights granted PointCast under

this Agreement, including without limitation the rights under this Section

11. EDS shall establish and maintain written agreements with its employees

and such parties sufficient to enable EDS to comply with the provisions of

the foregoing sentence.



(d) ACCESS; RETURN OF MATERIALS. PointCast shall have continuous access to the

Facilities and to all data, documents, computer software, Content (as

defined in Section 14), Technology and other materials provided to EDS by

PointCast. EDS will return the original and any copies of all Technology

and all data, documentation, software, Content and other materials promptly

upon PointCast's request. Upon the expiration or earlier termination of

this Agreement for any reason whatsoever, EDS shall promptly return the

original and any copies of all Technology and all data, documents, computer

software, Content and other materials provided by PointCast, in whatever

stage of completion, to PointCast, or PointCast's designated agent.



12. CONFIDENTIALITY Except as otherwise expressly provided in this Agreement,

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EDS and PointCast each agree that all information communicated to it by or

on behalf of the other, whether before or after the Effective Date, which

is marked or identified or otherwise deemed confidential as described

below, will be and will be deemed to have been received in strict

confidence and will be used only as required to carry out the recipient

party's obligations or exercise the recipient party's rights under this

Agreement. EDS and PointCast each agree that it will use the same means as

it uses to protect its own confidential information, but in any event not

less than reasonable means including written agreements, to prevent the

disclosure and to protect the confidentiality of the other party's

confidential information. No such information, including the terms of this

Agreement, will be disclosed by the recipient party, its agents,

representatives or employees without the prior written consent of the other

party; provided, however, that each party may







disclose such information to those of its third party consultants identified to, and approved by, the other party and employees, in each case having a need for access to such information for purposes of this Agreement a nd with respect to each of whom such party has taken steps, no less rigorous than what it would do to protect its own proprietary information, but in any event at least reasonable steps including written agreements, to prevent any such employees or consul t ants from acting in any manner inconsistent with this Section 12. Recipient's obligations of non-disclosure under this Section 12 shall not apply to Information which; (a) is already known to the recipient party and is not governed by the term of another separate nondisclosure agreement with the disclosing party, (b) is publicly known or becomes publicly known through no unauthorized act of the recipient party, (c) is rightfully received from a third party, authorized to disclose such information (d) is i n dependently developed without use of the other party's confidential information or (e) is disclosed without similar restrictions to third parties generally by the party owning the confidential information. If confidential information is required to be di s closed pursuant to a requirement of a governmental authority, such confidential information may be disclosed pursuant to such requirement so long as the party required to disclose the information provides the other party with timely prior notice of such r e quirement and coordinates with such other party in an effort to limit the nature and scope of such required disclosure. All confidential information that is subject to this Section 12 must be, if in written form when received from the other party, marked or identified as confidential and, if in oral or visual form when received from the other party, identified in advance as confidential. Notwithstanding the foregoing, the following information will be deemed the confidential information of PointCast with o ut the necessity of marking or identifying it as such: (i) information developed by PointCast or PCN, (ii) information on performance and utilization of PCN, and (iii) information in whatever form relating to (A) the design, functionality, operational met h ods, or coding of any PointCast software, including, without limitation, any complete or partial object or source code versions of such software, (B) the design elements and tradeoffs, system components and configurations, and operating and performance ch a racteristic of the current operating environment of PCN (as it may change over a period of time) and/or the PointCast Texas Data Center, and (C) the collection, transmission, and analysis of statistical information from the PCN Client or PointCast server software.



13. TERMINATION. In the event that either party materially or repeatedly

----------- defaults in the performance of any of its duties or obligations hereunder, (a) which default, if of a non-monetary nature, is not substantially cured with in thirty (30) days after written notice is given to the defaulting party specifying the default, or with respect to those defaults that cannot reasonably be cured within thirty (30) days, should the defaulting party fail to proceed within thirty (30) day s to commence curing the default and thereafter to proceed with all reasonable diligence to substantially cure the default, or (b) which default, if of a monetary nature, is not cured within thirty (30) days after written notice is given to the defaulting p arty specifying the default, the party not in default may, by giving written notice thereof to the defaulting party, terminate this Agreement as of a date specified in such notice of termination. Notwithstanding the foregoing, any Work Order hereunder may be terminated in accordance with the terms of a Work Order. Upon expiration or termination of this Agreement or any Work Order for any reason, EDS will cease to perform the EDS Services for PointCast, or the EDS Services under such Work Order (as appropri a te), and PointCast will pay to EDS all sums due to EDS as a result of EDS Services performed prior to such termination (prorated as appropriate). Upon expiration or any other termination of this Agreement, EDS will return to PointCast or destroy, at Point C ast's option, all copies of all materials, including software, and all equipment provided to EDS hereunder by PointCast and shall erase from computer memory any copies of such materials, including software, residing thereon. If PointCast directs that any m aterials are to be destroyed, EDS shall certify in writing that such materials have been destroyed. The provisions of Sections 1, 6, 10, 11, 12, 14, 15, 16, 20, 23, and 24 as well as any payment obligations for payments due and payable as of the date of t ermination shall survive the expiration or other termination of this Agreement.



14. INDEMNITIES.

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(a) Subject to Section 14(d) , EDS and PointCast (each, as an indemnifying

party, the "Indemnitor") each agree to indemnify and defend the other party

(each, as an indemnified party, the "Indemnitee") and hold the Indemnitee

harmless from any and all claims, actions, damages, liabilities, costs and

expenses, including but not limited to reasonable attorneys' fees and

expenses (collectively, "Costs"), arising out of, under or in connection

with (i) any claim for rent or utilities at any location where the

Indemnitor is financially responsible under this Agreement for such rent or

utilities, (ii) any claim for taxes, wages, benefits or third party fees

for which the Indemnitor is









financially responsible under this Agreement or (iii) the death or personal

injury, or loss or damage to the property, of the Indemnitee or its

employees or representatives caused by the negligent act or omission or

willful misconduct of the Indemnitor; and, (iv) in addition EDS agrees to

indemnify and defend and hold harmless PointCast from any costs of EDS or

its officers, directors, employees, agents, or representatives arising out

of or relating to the termination of this Agreement in accordance with its

terms or the termination of any other agreements or employment

relationships as may be entered into by EDS which results from such

termination of this Agreement.



(b) Subject to Section 14(d), EDS and PointCast each agree to defend the

Indemnitee against any action to the extent that such action is based upon

a claim that the software (other than third party software), Technology or

confidential information provided by the Indemnitor, or any part thereof,

(i) infringes a copyright perfected under United States statute, (ii)

infringes a patent granted under United States law or (iii) constitutes an

unlawful disclosure, use or misappropriation of another party's trade

secret or confidential information. The Indemnitor will bear the expense

of such defense and pay any Costs that are attributable to such claim

finally awarded by a court of competent jurisdiction. Neither EDS nor

PointCast will be liable to the other for claims of indirect or

contributory infringement.



(c) Subject to Section 14(d), PointCast will defend EDS from any action by

third parties to the extent that such action is based on a claim of

infringement of the literary property of another, libel, indecency, false

light, misrepresentation, invasion of privacy or misappropriations of image

or personality rights, arising out of, under or in connection with any

claims relating to (Ii) the provision, use or distribution of the content

via PCN over the Internet from the PointCast Texas Data Center where

transmission of such content was authorized by PointCast, whether such

content is of an editorial, advertising or other nature, (ii) (iii)

statements or other materials made or made available on PCN by Viewers, by

PointCast's customers or by others to whom such content is linked at the

request of PointCast. PointCast will bear the expense of such defense and

pay any Costs that are attributable to such claim finally awarded by a

court of competent jurisdiction.



(d) Each of the above indemnities is conditioned upon the Indemnitor having

received full and prompt notice in writing of the claim and the Indemnitee

allowing the Indemnitor to fully direct the defense or settlement of such

claim. The Indemnitor will not be responsible for any settlement or

compromise made without its consent.



15. LIABILITY. In the event that either party is liable to the other for any

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matter relating to or arising in connection with this Agreement except for

PointCast's obligations of payment pursuant to Section 7 hereof, whether

based upon an action or claim in contract, equity, negligence, intended

conduct or otherwise, the amount of damages recoverable against a party for

all events, acts or omissions will not exceed, in the aggregate, [*] to be

paid by PointCast under this Agreement in the [*] preceding such claim, or

if the claim occurs during the first year of the Agreement, then [*] to be

paid by PointCast in the [*] of this Agreement. In no event will the

measure of damages include, nor will either party be liable for, any

amounts for loss of profits, income or savings or indirect, consequential,

incidental or punitive damages of any party, including third parties.

Further, no cause of action may be asserted against either parties later

than [*] following the date after the date on which the cause of action

will have accrued. EDS and PointCast expressly acknowledge that the

limitations contained in this Section 15 have been the subject of active

and extensive negotiation between the parties and represent the parties'

agreement based upon the level of risk to EDS associated with the

performance of the EDS Services and the payments provided hereunder to EDS

for such performance. Nothing in this Section 15 shall apply to any

liability for breach of confidentiality obligations or to any indemnity

obligations under this Agreement.





16. REPRESENTATIONS, WARRANTIES AND DISCLAIMER.

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(a) Representations and Warranties of the parties The parties hereby

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represent and warrant to each other on a continuing basis that (i)

such party has the right, experience and skill to enter into and fully

perform its obligations under this Agreement and to grant the rights

granted or agreed to be







[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN

REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

granted hereunder; (ii) such party shall comply with all applicable

federal, state, and local laws in effect at the time services are

performed; (iii) such party shall perform said services in a

workmanlike manner and in accordance with generally accepted

professional standards, as applicable; (iv) there is no outstanding

contract, commitment or agreement to which such party is a party or

legal impediment of any kind known to such party which conflicts with

this Agreement or which might limit, restrict, or impair the rights

granted to the other party hereunder; and (vi) the media on which any

computer programs, documentation and other deliverables delivered to

or used on behalf of a par ...