EXHIBIT 10.17
AMENDMENT NUMBER 1 TO INTERACTIVE MARKETING AGREEMENT
This Amendment (this "Amendment") dated as of April 19, 2000 (the
"Amendment Date"), is by and between America Online, Inc. ("AOL"), a Delaware
corporation, with offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000, and
Xxxxxxx.xxx ("MP" or "Autoweb"), a DELAWARE corporation, with offices at 0000
Xxx Xxxxxx, Xxxxx Xxxxx, XX 00000, and shall amend that certain Interactive
Marketing Agreement (the "Agreement") dated June 30, 1999, by and between AOL
and MP. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Agreement.
INTRODUCTION
1. The Parties have reviewed the performance of the relationship
created to the Agreement and have now desire to expand the relationship further
in accordance with the Terms of this Amendment.
2. Except as specifically amended by this Amendment, the Parties
desire that the Agreement remain in full force and effect.
TERMS
A. DEVELOPMENT AND INTEGRATION OF NEW PRODUCTS.
A.1 RESEARCH & DECISION GUIDES.
A.1(a) Contemporaneous with the execution of this Amendment,
the Parties shall execute and deliver a Confidential
Technology and Data License Agreement (the "Technology
and Data License Agreement") in the form of Exhibit C
attached hereto. In the event of any conflict between
the terms of this Agreement and the terms of Exhibit C,
the terms of Exhibit C shall control. Pursuant to the
terms of the Technology and Data License Agreement, MP
will work with AOL to integrate the licensed data (the
"Licensed Data") into AOL's PersonaLogic automobile
decision guide (the "PL Decision Guide"), as more fully
described in Schedule 1. MP covenants that it will
provide AOL during the Term with all additions to,
expansions or refinements of, or enhancements to the
Licensed Data for no additional cost.
A.1(b) For the duration of the Term, AOL hereby grants MP a
non-exclusive license to distribute an MP-branded
version of the PL Decision Guide as designated by AOL on
MP's generally available web site, but MP may neither
(i) sublicense or assign any of its rights in such PL
Decision Guide to, nor (ii) distribute such PL Decision
Guide with the products of, any other third party. AOL
will license to MP for use on its generally available
web site any proprietary software necessary to support
such PL Decision Guide. In the event that MP fails to
comply with the requirements of this Section A.1(b), AOL
may, upon written notice, revoke the license granted
hereunder and the other provisions of the Agreement
shall continue in full force and effect.
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-1-
A.2 CONFIGURATION & COMPARISON. Contemporaneous with the execution
of this Amendment, the Parties shall execute and deliver the
Technology and Data License Agreement referenced above. Pursuant
to the terms of and as set forth in the Technology and Data
License Agreement, MP will develop and License to AOL the
Technology specified in the Technology and Data License
Agreement (the "Licensed Technology"), provided, however, that
AOL may use any or all of the Licensed Technology at its option
and shall not be required to use all of such Licensed
Technology. MP covenants that it will provide AOL during the
Term with all additions to, expansions or refinements of, or
enhancements to the Licensed Technology for [**].
A.3 BUYING SERVICE.
A.3(a) As more fully described in Schedule 1, MP shall create a
customized version of its buying service (the "Buying
Service") which will be seamlessly integrated with the
PL Decision Guide, the Configuration and Comparison
services and other areas of the AOL Network as mutually
agreed by the Parties. The Buying Service will provide
AOL Users with the best available pricing and services
and in no way will disadvantage AOL Users. AOL shall own
all AOL-specific customization and MP shall have no
right to assign or transfer any rights to such
customization to any third party. No [ ** ] shall be
referenced or promoted (i) within the Promo Content of
any Promotion or (ii) within the first screen of the
Buying Service linked to any Promotion.
A.3(b) As more fully described in Schedule 1, the Buying
Service will be hosted and managed by MP and will be
co-branded according to AOL's standard co- branding
requirements, including without limitation, co-branded
URL, headers and footers. The Buying Service shall be a
"cul-de-sac" area of the Affiliated MP Site. MP shall
provide navigation back to the AOL Network in a manner
reasonably acceptable to AOL and shall not contain
navigation to other areas of the Affiliated MP Site or
any third party site (other than through advertising or
integrated auto-related transaction service links (e.g.,
financing, insurance or warranty offers)).
A.3(c) Subject to AOL's advertising policies, MP will control
the advertising and commerce opportunities on the Buying
Service; provided, however, that no advertisements in
any category for which AOL has an exclusive relationship
shall be included within the first or second level
screens of the Buying Service (i.e., must be at least
two "clicks" down into the Buying Service). Without
AOL's prior written approval, MP will not, within the
Buying Service, promote any original equipment
manufacturer ("OEM") in a manner greater than it
promotes any other OEM (i.e., conquesting) or allow for
conquesting by OEMs of other OEMs with whom AOL has
entered into an agreement. Notwithstanding the
foregoing, MP will integrate specified AOL partners into
the AOL Auto Channel, including without limitation,
those entities listed on Schedule 2.
A.4 PRODUCT INTEGRATION AND REQUIREMENTS.
A.4(a) PRODUCT REQUIREMENTS. All initial products for the AOL
Properties shall meet the relevant requirements set
forth on Schedule 1. AOL and MP will meet at a mutually
agreeable location, as appropriate, to discuss and
define all new product
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-2-
requirements for the AOL Properties on an ongoing basis.
In the event that they identify any new licensing or
development opportunities, the Parties will discuss in
good faith the terms of such licensing or development.
A.4(b) BRANDING. As more fully described in Schedule 1, the
Configuration and Comparison pages (collectively, the
"Ingredient Branded Areas") developed and hosted by MP
and displayed on the AOL Properties will be branded
employing an ingredient branding approach. AOL will be
prominently branded and MP branding will be present on
all such pages (e.g., "Powered by Autoweb") above the
fold in overall prominence consistent with the
ingredient-branding requirements included as Exhibit E
hereto. Pages hosted by or provided by a third party
shall incorporate branding for such third party. Content
used throughout any co-branded areas may include
attribution by using the providing party's name or logo.
The Parties will mutually agree upon appropriate
branding for such third party. To the extent such
communications are permitted under the Agreement, all
marketing communications from MP to AOL Users (i.e.,
emails, etc.) will be co-branded with AOL and MP. MP
will design each page within the Ingredient Branded
Areas based on the AOL design guideline templates and
ingredient-branding requirements. AOL will have design
approval rights for user interface elements and all
pages. AOL shall have the right to change or modify its
design guideline templates and ingredient-branding
requirements at any time and from time to time during
the Term; provided, however, that notwithstanding such
change or modification, AOL shall not have the right to
(i) alter or modify the content of MP's proprietary
logos or marks or (ii) reduce the overall prominence of
MP's branding within the Ingredient Branded Areas.
Buying Service pages will be co- branded according to
AOL's standard co-branding requirements for partner
pages.
A.5 ADVERTISING. AOL will sell and serve all advertising,
revenue-generating, and promotional positions (including
sponsorships) in all Ingredient Branded Areas. MP may not
incorporate or link from the Ingredient Branded Areas to any
promotional, advertising, sponsorship or otherwise commercial
elements without AOL's prior written approval, and in no event
shall sell or serve advertising in the Ingredient Branded Areas.
A.6 PRODUCTION AND HOSTING. Subject to AOL's discretion, AOL shall
host the following pages: PL Decision Guide pages, static
navigation pages and content pages. MP will host all pages of
the Ingredient Branded Areas and the Buying Service. MP will
provide AOL with an acceptable 24x7 technical support plan. MP
will optimize the performance of the Ingredient Branded Areas
and the Buying Service for integration throughout the AOL
Properties. MP will provide, maintain, and support all necessary
software and hardware. All pages within the Ingredient Branded
Areas developed by MP will be hosted under an AOL domain name
(i.e., XxxxXxx.XXX.xxx). MP will modify links within such pages
to re-circulate users to the AOL Properties. MP will ensure that
all AOL Users in the Ingredient Branded Areas will not be able
to access any links to MP's generally available Web site.
Hosting may be migrated to AOL upon the mutual agreement of the
Parties.
A.7 CUSTOMIZATION. MP will customize throughout the AOL Properties
as follows:
A.7(a) Within the Buying Service and Ingredient-Branded Areas,
MP shall provide continuous navigational ability for AOL
Users to return to an agreed upon point
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-3-
on the applicable AOL Property. In addition, MP shall
provide links back to AOL-designated points in the AOL
Network from within each particular tool or
functionality within the Auto Channel.
A.7(b) Upon AOL's reasonable and appropriate request, MP shall
use AOL's tools and technology for chat, message boards,
Quick Checkout, Search and such other tools and
technology as the Parties may mutually agree. In the
event that the addition of such tools and technology
would require MP to incur material costs of
installation, AOL shall reimburse MP for time and
material costs in accordance with Section E below.
A.8 USER REGISTRATION. If AOL Users are required to register to
access certain features within the Ingredient Branded Areas,
such registration processes will be seamlessly integrated with
AOL's "universal Registration" or "SNAP" system (or such other
system developed by AOL), shall be subject to AOL's reasonable
approval and be consistent with AOL's then-current privacy
policy. In the event that such integration would require MP to
incur material costs of development, AOL shall reimburse MP for
the cost of time and materials in accordance with Section E
below, unless MP provides such integration for any other
interactive Service
A.9 RECORDING OF TRAFFIC; DOMAINS AND URL'S. All pages of the Buying
Service and the Ingredient Branded Areas will be served from an
XXX.xxx domain with the following URL: XxxxXxx.XXX.xxx. MP will
report traffic and click-through data according to AOL third
party reporting guidelines. To the maximum extent available MP
and AOL shall cause third party reporting agencies to mutually
record unique visitor traffic and page views to allow for both
Parties to receive traffic credit.
B. OEM ACCOUNTS; CUSTOM DEVELOPMENT.
B.1 AOL will lead sales efforts to all auto manufacturers as such
efforts pertain to the AOL Properties. Sales to those accounts
named in Schedule 2 may consist of co-branding with the OEM the
functionality that exists in the Ingredient Branded Areas, as
set forth in Schedule 1 and subject to the Technology and Data
License Agreement; provided that MP shall receive branding
attribution of prominence consistent with Exhibit E and provided
that such co-branding with the OEM shall not include
sublicensing of any licensed materials for use on the OEM's web
site. MP will host all such pages.
B.2 With respect to the customization or enhancement of the Licensed
Technology or additional servers or programming required to
implement the sales efforts by AOL to OEMs described above, MP
shall be entitled to reimbursement for time and materials in
accordance with Section E below. Unless the Parties shall
otherwise agree, in the event that AOL reimburses MP for all
costs of time and materials incurred by MP in developing such
enhancements or customizations, AOL shall own and MP shall have
no rights in, including, without limitation, the right to use or
convey, any such enhancements or customizations. In the event
that AOL requests that MP develop new functionality (as distinct
from the enhancements or customizations of the Licensed
Technology referenced above), the terms of such development
shall be on an as negotiated basis between the Parties
consistent with Section E below.
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-4-
C. FINANCIAL SERVICES PARTNERS. AOL financial services partners identified
in Schedule 3 will be integrated in the Finance, Insurance, and Warranty
portions of the Ingredient Branded Areas for purposes of promoting their
loan, lease, insurance and warranty products. AOL reserves the right to
sign deals with additional financial service partners and update
Schedule 3 on an ongoing basis. MP will undertake efforts required to
integrate these additional partners into the automotive offering, as
specified by AOL. MP will be under no obligation to integrate AOL
category partners into the MP Buying Service or Affiliated MP Site. MP
shall be entitled to reimbursement for time and materials required in
connection with its performance under this Section C in accordance with
Section E below.
D. BUYING SERVICE PARTNERS. MP will undertake efforts required to integrate
AOL buying channel partners, including, without limitation, those listed
on Schedule 4, which schedule AOL may update from time to time in its
discretion, into the AOL Auto Channel, including, without limitation,
into the Ingredient Branded Areas, as specified by AOL. MP shall be
entitled to reimbursement for time and materials required in connection
with its performance under this Section D in accordance with Section E
below.
E. TIME AND MATERIALS. To the extent specifically required under the terms
of this Amendment, AOL will reimburse MP for ongoing work product and
deliverables not specified in Schedule 1 in accordance with the
following: prior to commencement of work for which MP intends to seek
reimbursement, MP shall present AOL with a detailed proposal for
determining the measure of reimbursable items. If AOL shall accept such
proposal in writing prior to the commencement of such work, AOL shall
reimburse MP in accordance with the terms of such proposal. If AOL does
not accept in writing such proposal, Autoweb shall be under no
obligation to perform the services outlined in said proposal.
F. ROLLOUT SCHEDULE. MP shall deliver the Licensed Data to AOL as required
under Section A of this Amendment within [ ** ] of the Amendment Date.
MP shall launch the Buying Service on or before [ ** ]. MP shall deliver
to AOL beta versions of the Licensed Technology required under Section
A.2 above on or before [ ** ] and final versions of such deliverables on
or before [ ** ]. The above time frames are based on limited knowledge
of AOL systems and platforms. As a result, these estimates are subject
to certain dependencies, including the ability to quickly interface to
and/or integrate with the AOL platforms, timely access to developmental
personnel familiar with such platforms, timely access to AOL personnel
to assist in defining development and architecture, and timely access to
documented AOL code and dually conversant personnel.
G. USER DATA. OL and MP will jointly and severally own all end user data
collected by MP in conjunction with the use of the Ingredient Branded
Areas. MP will not sell or provide any AOL User information (e.g., names
and email addresses) to a third party for any purpose, without the
written consent of AOL.
H. CUSTOMER SERVICE. MP shall maintain a level of customer service and
responsiveness as AOL shall reasonably request. At a minimum, MP shall
respond promptly to any AOL request for assistance (e.g., fixes to the
Licensed Technology) and, if such request relates to a mission critical
matter, endeavor to completely address AOL's request within 24 hours or
such shorter period of time if the circumstances so demand.
I. CONTINUED POINTERS. Upon the completion of the Term, for a period of [
** ] (the "Continued Link Period"), if AOL elects to (a) promote one or
more "pointers" or links from
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-5-
AOL to the Affiliated MP Site and (b) use MP's trade names, trademarks
and service marks in connection with such promotion. During the
Continued Link Period, MP shall pay to AOL on a quarterly basis within [
** ] following the end of the quarter in which such amounts were
generated, [ ** ] for each AOL Purchase Request submitted during such
Continued Link Period.
J. AFFILIATE MARKETING PROGRAM. At MP's option, MP shall participate in the
AOL Affiliate Marketing program and abide by the terms and conditions of
the AOL Affiliate Marketing Program Agreement. MP's participation in the
AOL Affiliate Marketing program shall require that AOL will be
prominently featured on the Xxxxxxx.xxx website. AOL will compensate MP
for each Qualified New AOL Member (as defined hereafter) attained
through these promotions. A Qualified New AOL Member is a member of AOL
acquired through customer acquisition efforts pursuant to this
Agreement, who, (i) registers for the AOL Service during the Term of the
Agreement, using MP's special promotion identifier, and (ii) who pays
the then-standard fees required for membership to the AOL Service
through at least two consecutive billing cycles.
K. PREMIER PARTNER OPPORTUNITY AND QUARTERLY PRODUCT MEETINGS. MP will
provide AOL during the Term with all additions to, expansions or
refinements of, or enhancements to the Licensed Data and Licensed
Technology. Additionally, MP shall (i) meet quarterly with AOL during
the Term to offer all generally available new products, if any, to AOL
and, (ii) subject to MP's current agreements with third parties, make
such products available to AOL on the same or equivalent terms (i.e., at
the same cost) paid by other similarly situated MP partners
("Non-Discriminatory Terms"). Additionally, without limiting the
generality of the foregoing, subject to the signing of a licensing
agreement between MP and AOL, MP shall license to AOL on
Non-Discriminatory Terms: (a) new products that it licenses to [ ** ] or
its successor; (b) the "My Auto" product; and (c) new products that are
offered to two or more Interactive Services.
L. CARRIAGE.
L.1 AMENDMENT OF CARRIAGE PLAN. Exhibit A of the Agreement shall be
amended and restated in its entirety to read as set forth on
Exhibit A of this Amendment.
L.2 IMPRESSIONS COMMITMENT. The first sentence of Section 1.2 of the
Agreement is hereby deleted and replaced in its entirety with
the following:
During the Initial Term, AOL shall deliver [ ** ]
Impressions to MP through the Promotions (the
"Impressions Commitment").
The Parties agree and acknowledge that as of the Amendment Date
[** ] Impressions have been delivered by AOL under the
Agreement.
L.3 FIXED PLACEMENT. Notwithstanding any provision of the Agreement
or this Amendment to the contrary:
L.3(a) The Impressions set forth on Exhibit A which are
designated on such Exhibit As Product Page Impressions
shall be permanent placements on the new car product
pages (the "Product Pages") and shall not be subject to
replacement by AOL as otherwise permitted under Section
1.1 of the Agreement; provided that this
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-6-
provision shall have no affect on AOL's right to
redesign any part of the AOL Network. Accordingly, AOL
shall be required to deliver without substitution during
any contract year the number of Impressions set forth on
Exhibit A (the "Minimum Delivery Number").
Notwithstanding the attainment of the Minimum Delivery
Number, until MP shall deliver the notice required under
Section L.3(c) below, AOL shall continue the placements
designated on Exhibit A as "Product Page Impressions" as
a permanent placement; provided that notwithstanding the
foregoing, MP agrees and acknowledges that the [ ** ]
Product Page Impressions shall not be permanent. The
number of Product Page Impressions delivered in any
contract year in excess of the Minimum Delivery Number
shall be referred to herein as the "Product Page
Impressions Overdelivery Amount". As used herein, a
contract year of this agreement shall be the period
between the Amendment Date and the first anniversary
date of the Amendment and successive twelve month
periods during the Term.
L.3(b) Prior to the date which is [ ** ] days after AOL's
receipt of a Permanent Placement Termination Notice, MP
shall be required to pay AOL on the next Payment Date as
additional consideration an amount equal to (x)(i) the
Product Page Impressions Overdelivery Amount delivered
between such Payment Date and the immediately preceding
Payment Date, divided by (ii) one thousand, multiplied
by (y) [ ** ].
L.3(c) In the event that MP desires that AOL discontinue its
maintenance of the Product Page Impressions as a
permanent placement, MP shall deliver to AOL a notice to
such effect referencing this Section L.3(c) (a
"Permanent Placement Termination Notice"). Ninety (90)
days after receipt of such Permanent Placement
Termination Notice, AOL shall have no obligation to
reserve Product Page Impressions for MP in excess of the
Minimum Delivery Number and MP shall have no further
obligation to pay for any Product Page Impressions
Overdelivery Amount; provided that AOL shall reserve at
all times during the Term the right to substitute
Product Page Impressions for other Impressions reflected
on Exhibit A (i.e., AOL may make-up underdelivery in
non-Product Page Impressions with additional Product
Page Impressions and, in such event, MP shall not be
required to pay additional compensation solely with
respect to these additional Product Page Impressions).
M. PAYMENTS.
M.1 PAYMENTS PRIOR TO AMENDMENT DATE. Prior to the Amendment Date
the Parties agree and acknowledge that, pursuant to the
requirements of Section 3.1 of the Agreement, MP has paid to AOL
[ ** ] (the "Paid-To-Date Amount"); which amount relates to
carriage scheduled to be delivered through [ ** ]. The Parties
agree and acknowledge that [ ** ] of the Paid-To- Date Amount
(the "Unaccrued Amount"), shall be applied by AOL to the payment
required to be delivered by MP under Section M.3(a).
M.2 EFFECT ON ORIGINAL PAYMENT SCHEDULE. In consideration of the
additional undertakings set forth in this Amendment, the Parties
have agreed to create a new consideration and payment schedule
under the Agreement. Accordingly, no further amounts shall be
payable under Section 3.1 of the Agreement and the last sentence
of such section shall be of no further force or effect.
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-7-
M.3 GUARANTEED PAYMENT. In consideration of AOL's obligations under
the Agreement, as amended by this Amendment, MP shall pay to AOL
(in addition to the Paid-To-Date Amount and the amounts due
under Sections I, L.3 and O of this Agreement) a guaranteed
payment of [ ** ] payable as follows:
M.3(a) The total amount due to AOL as of the Amendment date
shall be [ ** ] and shall be payable as follows: [ ** ]
shall be payable on the Amendment Date and AOL shall
apply the entire Unaccrued Amount as payment for the
remainder of such amount due, and
M.3(b) [ ** ] shall be payable on each of [ ** ] (each a
"Payment Date").
N. TERM. Section 4.1 of the Agreement is hereby deleted and replaced in its
entirety with the following:
4.1 TERM, RENEWAL, POST-TERM LICENSE.
4.1.1 TERM. The initial term of this Agreement (the "Initial Term")
shall commence on the Effective Date and shall terminate on the
[ ** ] of the Amendment Date (unless earlier terminated as
permitted herein) (the Initial Term plus any extension or
renewal hereof shall be referred to as the "Term").
4.1.2 POST-TERM LICENSE. Upon the termination of this Agreement for
any reason other than termination by MP as a result of AOL's
uncured material breach of this Agreement (including but not
limited to Exhibit C hereto), MP shall permit AOL to continue to
license all intellectual property licensed pursuant to this
Agreement (including without limitation the Licensed Data and
all functionality supplied in connection with the Buying
Service) for a period of [ ** ] (or such shorter period as AOL
shall determine) (the "Post-Term License Period"), provided that
AOL shall pay to MP from the date of termination of the
Agreement and continuing until the termination of the Post-Term
License Period, a monthly license fee in advance of [ ** ] per
month. Notwithstanding any provision of this Agreement to the
contrary, this Section 4.1.2 shall survive any termination of
this Agreement.
O. REVENUE SHARING. During the Term, MP shall pay AOL, on a quarterly basis
within [ ** ] days following the end of the quarter in which such
amounts were generated, the Bounties set forth on Schedule 5 upon the
attainment of the Performance Hurdle set forth therein.
P. AMENDMENT OF SECTION 1.1 OF THE AGREEMENT. Section 1.1 of the Agreement
is hereby deleted and replaced in its entirety with the following:
1.1 AOL PROMOTION OF AFFILIATED MP SITE; FLEXIBILITY OF PROMOTIONS.
AOL shall provide MP with the promotions for the AOL Jump Pages
and the Affiliated MP Site described on Exhibit A attached
hereto (collectively referred to herein as the "Promotions").
AOL reserves the right (at its sole discretion) to (i)
substitute for the Promotions to be delivered in a particular
Level other promotions (in the same Level) in the same or
different areas of the AOL Properties, and (ii) substitute
Impressions in one Tier for those in another Tier at an exchange
ratio taking into account the Relative Weighted Value of the
Promotions substituted. In addition, AOL reserves the right to
redesign or modify the organization, structure, "look and feel,"
navigation and
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-8-
other elements of the AOL Network at any time. As used in this
Section 1.1, "Relative Weighted Value" of the promotions and
Impressions refers to the fact that, as acknowledged and agreed
by the Parties hereto and as evidenced on the Switching Matrix
included in Exhibit A hereto, the Promotions described on
Exhibit A hereto are not of equal value but rather, in order of
descending relative value from the most to the least valuable,
are categorized as follows: (a) Tier 1 (b) Tier 2, (c) Tier 3
and (d) Tier 4. In the event that the AOL wishes to switch
promotions to new inventory on the AOL Network, or inventory not
referenced on Exhibit A, the Parties shall mutually and in good
faith determine the appropriate tier for such inventory.
Q. AMENDMENT OF AOL NETWORK DEFINITION. The last sentence of the definition
of "AOL Network" included in Exhibit B of the Agreement is hereby
deleted.
R. AMENDMENT OF EXHIBIT C OF THE AGREEMENT. Exhibit C of the Agreement
shall be amended and restated in its entirety to read as set forth on
Exhibit B of this Amendment.
S. AMENDMENT OF EXHIBIT D OF THE AGREEMENT. Exhibit D of the Agreement
shall be amended and restated in its entirety to read as set forth on
Exhibit D of this Amendment.
T. AMENDMENT OF EXHIBIT D-1 OF THE AGREEMENT. Exhibit D-1 of the Agreement
shall be amended and restated in its entirety to read as set forth on
Exhibit D-1 of this Amendment.
U. EXHIBITS AND SCHEDULES. The exhibits and schedules identified in and
attached to this Amendment are each incorporated into this Agreement and
are hereby made a part of this Amendment. Except for Exhibit C hereto,
in the event of a conflict between the substantive provisions set forth
above in body of this Amendment (the "Main Provisions") and the exhibits
incorporated into this Amendment, the Main Provisions shall control.
Terms and conditions of Exhibit C control in the event of any conflict
between such Exhibit And the Main Provisions. Schedules which are
updated by AOL as permitted hereunder shall supercede the previous
schedule.
V. EFFECT ON AGREEMENT. Except as specifically amended by this Amendment,
the Agreement remains in full force and effect.
[SIGNATURE PAGE FOLLOWS]
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-9-
In witness whereof, the Parties have executed this Amendment as
of the date written hereinabove.
AMERICAN ONLINE, INC.
By: /s/ XXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------------
Title: President, Business Affairs
--------------------------------------
XXXXXXX.XXX, INC.
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
--------------------------------------
Title: Chairman & CEO
--------------------------------------
**Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
-10-
