CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT, AND NON-PUBLIC INFORMATION HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.11
CONFIDENTIAL
SHOPPING CHANNEL PROMOTIONAL AGREEMENT
This Agreement, dated as of October 1, 1998 (the "Effective Date"),
is made and entered into by and between America Online, Inc. ("AOL"), a
Delaware corporation, with its principal offices at 00000 XXX Xxx, Xxxxxx,
Xxxxxxxx 00000 and Online Specialty Retailing Inc. ("MERCHANT") a Washington
corporation, with its principal offices at 0000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxx, XX 00000 (each a "Party" and collectively the "Parties").
INTRODUCTION
AOL owns, operates and distributes the U.S. America
Online-REGISTERED TRADEMARK- brand commercial online service (the "AOL
Service"), the U.S. version of its primary website marketed under the
AOL.com-REGISTERED TRADEMARK- brand ("XXX.xxx") and the affiliate U.S.
CompuServe-REGISTERED TRADEMARK- brand commercial online service (the
"CompuServe Service"). MERCHANT wishes to secure a promotional placement
(the "Promotion") within the shopping channel of the AOL Service, XXX.xxx and
the CompuServe Service (as specified in Exhibit A) (each channel, a "Shopping
Channel") which, when activated, will provide access to MERCHANT's site on
the World Wide Web or its area on the AOL or CompuServe Services (as the case
may be) (the "Merchant Site") where MERCHANT offers content, products and/or
services for sale.
TERMS
1. MERCHANT PROGRAMMING. MERCHANT WILL MAKE AVAILABLE THROUGH
THE MERCHANT SITE THE CERTAIN PRODUCTS, CONTENT AND/OR SERVICES SPECIFIED IN
EXHIBIT A (THE "PRODUCTS") IN ACCORDANCE WITH THE STANDARD SHOPPING CHANNEL
TERMS AND CONDITIONS SET FORTH ON EXHIBIT B.
2. PROMOTIONAL OBLIGATIONS.
2.1 AOL PROMOTION OF MERCHANT. Commencing on a date to be
mutually agreed promptly following execution hereof, AOL will provide the
Promotion(s) set forth in Exhibit A. Except to the extent expressly
described in Exhibit A, the specific form, placement, positioning, duration
and nature of the Promotion(s) will be as determined by AOL in its reasonable
discretion (consistent with the editorial composition of the applicable
screens) and the nature of the Promotion being purchased by MERCHANT, as
reflected in Exhibit A and in any placement fee specified in Section 3
below). The specific content to be contained within the Promotions
(including, without limitation, within any advertising banners or contextual
promotions) will be determined by MERCHANT, subject to AOL's technical
limitations, the terms of
[***] indicates confidential treatment for omitted text has been requested.
this Agreement and AOL's then-applicable policies relating to advertising and
promotions. Each Promotion will link only to the Merchant Site and will
promote only Products in the category directly relating to the Shopping
Channel department for which the Promotion is being purchased by MERCHANT.
MERCHANT acknowledges that the sole obligation of AOL is to display the
Promotion(s) in the Shopping Channel(s) in accordance with the terms and
conditions hereto.
2.2 MERCHANT CROSS-PROMOTION. Within each Merchant Site,
MERCHANT shall include a promotional mention ("AOL Promo") on the Merchant
Site, to promote such AOL Products or services as AOL may reasonably
designate (for example, the America Online-REGISTERED TRADEMARK- brand
service, the CompuServ-REGISTERED TRADEMARK- brand service, the
AOL.com-REGISTERED TRADEMARK-site, the Digital City-REGISTERED TRADEMARK-
services or the AOL Instant Messenger-TM- service); AOL will provide the
creative content to be used in the AOL Promo (including designation of links
from such content to other content pages). MERCHANT shall post (or update,
as the case may be) the creative content supplied by AOL (within the spaces
for the AOL Promo) within a commercially reasonable period of time from its
receipt of such content from AOL. Without limiting any other reporting
obligations of the Parties contained herein, MERCHANT shall provide AOL with
monthly written reports specifying the number of Impressions to the pages
containing the AOL Promo during the prior month. In MERCHANT's television,
radio, print and "out of home" (e.g., buses and billboards) advertisements
and in any publications, programs, features or other forms of media over
which MERCHANT exercises at least partial editorial control, MERCHANT will
include specific references or mentions (verbally where possible) of the
availability of the MERCHANT's site through the America Online-REGISTERED
TRADEMARK- brand service, which are at least as prominent as any references
that MERCHANT makes to any other MERCHANT online or Internet site (by way of
site name, related company name, URL or otherwise). Without limiting the
generality of the foregoing, MERCHANT's listing of the "URL" for any Merchant
online site will be accompanied by an equally prominent listing of the
"keyword" term on AOL for Merchant's Site.
3. PAYMENTS; REPORTS.
3.1 PLACEMENT FEES. MERCHANT will pay AOL [***] for
displaying the Promotion on the AOL Service, XXX.xxx and the CompuServe
Service. The total amount of [***] will be payable in equal quarterly
installments, with the first such payment to be made upon the Effective Date
and subsequent quarterly payments to be made on the first day of each
subsequent quarter. MERCHANT agrees that, except as specified herein, once
the Promotion is installed, there will be no refunds or proration of rates if
MERCHANT elects to discontinue display of the Promotion prior to expiration
of the Term.
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3.2 REPORTS. AOL will provide MERCHANT with monthly usage
information related to the Promotion in substance and form determined by AOL.
MERCHANT may not distribute or disclose usage information to any third party
without AOL's prior written consent. AOL makes no guarantees regarding the
accuracy, reliability or completeness of any usage information provided to
MERCHANT. MERCHANT will provide AOL with monthly reports, in a form
reasonably satisfactory to AOL, which detail the number of daily items,
orders and gross sales through the Merchant Site on the AOL Service, XXX.xxx
and the CompuServe Service (as applicable).
3.3 PRODUCTION. MERCHANT will create a customized home page
"welcome mat" for the AOL audience for each area on the Merchant Site linked
to from the AOL Network on a continuous basis (each a "Welcome Mat"), which
Welcome Mat(s) shall be subject to AOL approval and shall only promote the
Products set forth on Exhibit A attached. Any and all costs associated with
the development, design and construction of such Welcome Mat(s) shall be the
sole responsibility of MERCHANT, including but not limited to any specific
production resources which AOL allocates to any production work to be
performed on behalf of MERCHANT. In the event that MERCHANT elects to host
such Welcome Mat(s) on the AOL Network, such hosting will be at AOL's sole
discretion and MERCHANT will bear sole responsibility for any costs
associated with such hosting.
4. TERM. UNLESS OTHERWISE RIGHTFULLY TERMINATED PURSUANT TO THE
TERMS HERETO, THE TERM OF THIS AGREEMENT WILL BE FOR A PERIOD OF FIFTEEN (15)
MONTHS COMMENCING ON OCTOBER 1, 1998, AND ON ENDING DECEMBER 31, 1998 (THE
"TERM").
5. GENERAL TERMS. THE GENERAL LEGAL TERMS AND CONDITIONS SET
FORTH AN EXHIBIT C ATTACHED HERETO ARE HEREBY MADE A PART OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the Effective Date.
AMERICA ONLINE, INC. Online Specialty Retailing Inc.
By: By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Print Name: Print Name: Xxxxxxxx X. Xxxxxx
------------------------- ----------------------------
Title: Title: Chairman
------------------------------ ---------------------------------
Date: Date: August 4, 1998
------------------------------- ----------------------------------
Tax ID/EIN#:00-0000000
---------------------------
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[***] indicates confidential treatment for omitted text has been requested.
EXHIBIT A
DESCRIPTION OF PRODUCTS:
The only categories of Products to be sold through the Merchant
Site are as listed below.
MERCHANT will offer through its XxxxxXxxx.xxx Merchant site a wide
variety of food and food-related items. These include specialty foods,
ingredients, grocery items, cooking utensils and food-related books.
Specific items include, but are not limited to, coffees, teas, hors d'oeuvre,
oils, vinegars, relishes, sauces, condiments, meats, seafoods, snacks,
desserts, salsas, cookbooks, cooking utensils and supplies, smoked salmon,
lox, cheese, pesto, herbs, garlic, olives, sausage, chocolates, candy, jam,
fruit, shrimp, crab, fish, turkey, ham, beef, quail, chicken, pork, steaks,
bacon, fruit, fruitcake, smoked meat, olive oil, vinegar, relish, confection,
chutney, hot sauces, salsas, pastas, snacks, candies, cake, biscotti,
cookies, brownies, tortes, barbecue, BBQ sauces, shortbread, chocolate,
truffle, almonds, hazelnuts, ginger, raisins, citrus, cheesecake, ice cream,
maple syrup, pecans, and marinades.
MERCHANT currently offers approximately 700 SKUs and expects
that number to increase significantly by year-end 1999.
PRODUCTS. MERCHANT will make available through the Merchant Site
the comprehensive offering of Products and other related Content specifically
described above.
IMPRESSIONS:
The screens on which the promotions appear on each of the AOL
Service, XXX.xxx and the CompuServe Service will receive a minimum of [***]
Impressions in the aggregate, subject to the remainder of this paragraph. In
the event there is (or will be in AOL's reasonable judgment) a shortfall in
Impressions as of the end of the Initial Term (a " Shortfall"), AOL will
provide MERCHANT, as its sole remedy, with advertising placements through
reasonably comparable advertising on AOL properties (determined by AOL) which
has a total value, based on AOL's then-current advertising rate card, equal
to the value of the Shortfall (determined by multiplying the percentage of
Impressions that were not delivered by the total, guaranteed Payment provided
for in Section 3 of the Agreement). For purposes of this Agreement,
"Impression" shall mean user exposure to the department level screen
containing the applicable promotion or
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advertisement. as such exposure may be reasonably determined and measure by
AOL in accordance with its standard methodologies and protocols.
Notwithstanding the foregoing, no representation is made with respect to
impressions in conjunction with the More Stores Plus Package described below.
DESCRIPTION OF SPECIFIC PROMOTION(S):
Please check the box next to the Promotion(s) that MERCHANT is
purchasing.
/ / ANCHOR PROMOTION
MERCHANT will become an "Anchor" in the _____________ department(s)
of the Shopping Channel on the AOL Service, XXX.xxx and the CompuServe
Service. As an Anchor in a department, MERCHANT will be entitled to the
following:
Principal Exposure on the AOL Service, XXX.xxx and the CompuServe
Service:
- One continuous (24/7) 130 x 90 button with corporate brand or
logo on the department front screen of the AOL Service.
- One continuous (24/7) 120 x 60 button with corporate brand or
logo on the department front screen of XXX.xxx.
- One continuous (24/7) 120 x 60 button with corporate brand or
logo on the department front screen of the CompuServe Service.
Additional Promotion on the AOL Service Shopping Channel:
- One continuous (24/7) two-line text field with featured
product to promote store product offerings on the
corresponding department screen.
- Product listing availability through the AOL Service Shopping
channel search screen. Web MERCHANT search links to
storefront.
- Up to three (3) AOL Keywords-TM- for use from the AOL Service,
for registered MERCHANT trade name or trademark (subject to
the other provisions contained herein).
- Twenty percent (20%) discount from the then-current rate card
on purchases of additional advertising banners or buttons on
the AOL Service, XXX.xxx and the CompuServe Service, subject
to availability for the period requested (with such purchases
to be made in accordance with the then-applicable Standard
Advertising Insertion Order for the property in question).
6
- Eligibility to participate in the following AOL Shopping
promotional programs (the "Program Areas"):
- Bargain Basement by Department
- Quick Gifts
- Seasonal Catalogs or Special Events areas (e.g.,
Christmas Shop)
- Order from Print Catalogs
- Gift Reminder
- Newsletters
- AOL's Quick Checkout
- BizRate-REGISTERED TRADEMARK- Program
/X/ TENANT PROMOTION
MERCHANT will become a "Tenant" in the Gourmet Foods & Grocery
department(s) of the Shopping Channel on the AOL Service, XXX.xxx and the
CompuServe Service. As a Tenant in a department, MERCHANT will be entitled
to the following:
Principal Exposure on the AOL Service, XXX.xxx and the CompuServe
Service:
- One continuous (24/7) 120 x 20 button with corporate brand or
logo on the department front screen.
Additional Promotion on the AOL Service:
- Rotation with other Tenants in the department on a continuous
(24/7) 120 x 60 promotional banner with text or branded art
promotion on the department front screen). These banner
rotations are reserved for the Tenant MERCHANT's on the
department screen and will be divided proportionately among
them.
- Product listing availability through the AOL Service Shopping
channel search screen. Web MERCHANT search links to
storefront.
- Up to three (3) AOL Keywords-TM- for use from the AOL Service,
for registered MERCHANT trade name or trademark (subject to
the other provisions contained herein).
- Twenty percent (20%) discount from the then-current rate card
on purchases of additional advertising banners or buttons on
the AOL Service, XXX.xxx and the CompuServe Service subject to
availability for the period requested (with such purchases to
be made in accordance with the then-applicable Standard
Advertising Insertion Order for the property in question).
7
- Eligibility to participate in the Program Areas (listed under
the Anchor description above).
/ / "MORE STORES" PLUS PROMOTION
MERCHANT will be listed or be provided a button in the "More
Stores" area in the __________________ department(s) of the Shopping Channel
on the AOL Service, XXX.xxx and the CompuServe Service, as specified below.
Principal Exposure:
- One continuous (24/7) listing in the More Stores list box in a
department specified above on the AOL Service.
- One continuous (24/7) 120 x 20 button with corporate brand or
logo on the corresponding department level page on XXX.xxx.
- One continuous (24/7) 120 x 20 button with corporate brand or
logo on the corresponding department front screen on
CompuServe.
All additional Promotions on XXX.xxx and the CompuServe Service not specified
herein will be determined at AOL's reasonable and sole discretion; provided
that the additional, standard Promotions to be provided to the MERCHANT
within the Shopping areas on XXX.xxx and the CompuServe Service will be
comparable in nature to the additional, standard Promotions provided to other
similarly situated merchants in the same category (i.e. Anchor, Tenant or
More Stores).
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EXHIBIT B
STANDARD SHOPPING CHANNEL TERMS & CONDITIONS
1. MERCHANT SITE. MERCHANT WILL WORK DILIGENTLY TO DEVELOP AND
IMPLEMENT THE MERCHANT SITE, CONSISTING OF THE SPECIFIC PRODUCT(S) SET FORTH
IN EXHIBIT A TO THE SHOPPING CHANNEL PROMOTIONAL AGREEMENT WHICH HAS BEEN
EXECUTED BY AOL AND MERCHANT (THE "PROMOTIONAL AGREEMENT," AND, COLLECTIVELY
WITH THESE STANDARD SHOPPING CHANNEL TERMS AND CONDITIONS, THE "AGREEMENT")
AND ANY ADDITIONAL PRODUCTS AGREED UPON IN WRITING BY THE PARTIES SUBSEQUENT
TO THE EFFECTIVE DATE. EXCEPT AS MUTUALLY AGREED UPON IN WRITING BY THE
PARTIES, THE MERCHANT SITE WILL CONTAIN ONLY CATEGORIES OF PRODUCTS, SERVICES
AND CONTENT THAT ARE DIRECTLY RELATED TO THE MERCHANT PRODUCTS LISTED IN
EXHIBIT A. ALL SALES OF PRODUCTS THROUGH THE MERCHANT SITE WILL BE CONDUCTED
THROUGH A DIRECT SALES FORMAT, ABSENT THE MUTUAL CONSENT OF THE PARTIES.
MERCHANT WILL ENSURE THAT THE MERCHANT SITE DOES NOT IN ANY RESPECT PROMOTE,
ADVERTISE, MARKET OR DISTRIBUTE THE PRODUCTS, SERVICES OR CONTENT OF ANY
OTHER INTERACTIVE SERVICE.
2. MANAGEMENT OF MERCHANT SITE. MERCHANT WILL MANAGE, REVIEW,
DELETE, EDIT, CREATE, UPDATE AND OTHERWISE MANAGE ALL PRODUCTS AVAILABLE ON
OR THROUGH THE MERCHANT SITE, IN A TIMELY AND PROFESSIONAL MANNER AND IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND AOL'S APPLICABLE TERMS OF
SERVICE AND PRIVACY POLICY (AS SET FORTH ON THE AOL SERVICE). TO THE EXTENT
THAT MERCHANT SITE INCLUDES AOL'S QUICK CHECKOUT (AS DEFINED IN SECTION 3 OF
EXHIBIT B) MERCHANT WILL ENSURE THAT THE AOL QUICK CHECKOUT IS OF EQUAL
PLACEMENT AND PROMOTION PROMINENCE TO OTHER AVAILABLE PAYMENT OPTIONS.
MERCHANT WILL ENSURE THAT THE MERCHANT SITE IS CURRENT, ACCURATE AND
WELL-ORGANIZED AT ALL TIMES. MERCHANT WARRANTS THAT THE MERCHANT SITE AND
ANY MATERIAL CONTAINED HEREIN: (I) WILL CONFORM TO AOL'S APPLICABLE TERMS OF
SERVICE AND PRIVACY POLICY; (II) WILL NOT INFRINGE ON OR VIOLATE ANY
COPYRIGHT, TRADEMARK, U.S. PATENT OR ANY OTHER THIRD PARTY RIGHT, INCLUDING
WITHOUT LIMITATION, ANY MUSIC PERFORMANCE OR OTHER MUSIC-RELATED RIGHTS; AND
(III) WILL NOT CONTAIN ANY PRODUCT WHICH VIOLATES ANY APPLICABLE LAW OR
REGULATION, INCLUDING
9
THOSE RELATING TO CONTESTS, SWEEPSTAKES OR SIMILAR PROMOTIONS. AOL WILL HAVE
NO OBLIGATIONS WITH RESPECT TO THE PRODUCTS AVAILABLE ON OR THROUGH THE
MERCHANT SITE, INCLUDING, BUT NOT LIMITED TO, ANY DUTY TO REVIEW OR MONITOR
ANY SUCH PRODUCTS; PROVIDED, HOWEVER, THAT AOL RESERVES THE RIGHT TO REVIEW
AND APPROVE ANY ADDITIONAL PRODUCTS AND ANY THIRD-PARTY CONTENT, PRODUCTS OR
SERVICES THAT MERCHANT MAKES OR DESIRES TO MAKE AVAILABLE THROUGH THE
MERCHANT SITE. UPON AOL'S REQUEST, MERCHANT AGREES TO INCLUDE WITHIN THE
MERCHANT SITE A PRODUCT DISCLAIMER (THE SPECIFIC FORM AND SUBSTANCE TO BE
MUTUALLY AGREED UPON BY THE PARTIES) INDICATING THAT TRANSACTIONS ARE SOLELY
BETWEEN MERCHANT AND THE AOL USERS WHO PURCHASE PRODUCTS FROM MERCHANT.
MERCHANT WILL ENSURE THAT NEITHER MERCHANT NOR ANY CONTENT, PRODUCT OR
SERVICE CONTAINED WITHIN THE MERCHANT SITE, LINKED TO THE PROMOTION OR
OTHERWISE RELATING THE AGREEMENT SHALL (I) DISPARAGE AOL; (II) PROMOTE A
COMPETITOR OF AOL; OR (III) STATE OR IMPLY THAT AOL ENDORSES MERCHANT'S
PRODUCTS.
3. OPTIMIZATION OF MERCHANT SITE. MERCHANT WILL TAKE ALL
REASONABLE STEPS NECESSARY TO CONFORM ITS PROMOTION AND SALE OF PRODUCTS
THROUGH THE MERCHANT SITE TO THE THEN-EXISTING COMMERCE TECHNOLOGIES MADE
AVAILABLE TO MERCHANT BY AOL, INCLUDING WITHOUT LIMITATION AOL'S "QUICK
CHECKOUT" TOOL WHICH ALLOWS AOL USERS TO ENTER PAYMENT AND SHIPPING
INFORMATION WHICH IS THEN PASSED FROM AOL'S CENTRALIZED SERVER UNIT TO
MERCHANT FOR ORDER FULFILLMENT ("AOL QUICK CHECKOUT"). AOL WILL MAKE ALL
REASONABLE EFFORTS TO PROVIDE THE TOOLS FOR THE MERCHANT TO ENABLE MERCHANT
SITE WITH THE AOL QUICK CHECKOUT TECHNOLOGY AND FUNCTIONALITY BY MARCH 31,
1999. COLLECTION, STORAGE AND DISCLOSURE OF INFORMATION WHICH MERCHANT
PROVIDES TO AOL, WILL BE SUBJECT TO AOL'S PRIVACY POLICY AND ALL
CONFIDENTIALITY REQUIREMENTS HEREUNDER. AOL RESERVES THE RIGHT TO REVIEW AND
TEST THE MERCHANT SITE FROM TIME TO TIME TO DETERMINE WHETHER THE SITE IS
COMPATIBLE WITH AOL'S AND COMPUSERVE'S THEN-AVAILABLE CLIENT AND HOST
SOFTWARE AND THEIR CORRESPONDING NETWORKS. AOL WILL BE ENTITLED TO REQUIRE
REASONABLE CHANGES TO THE CONTENT, FEATURES AND/OR FUNCTIONALITY WITHIN ANY
SCREEN OR FORM CREATED USING AOL'S PROPRIETARY FORM TECHNOLOGY (A) "RAINMAN
AREA" OR (B) HTML-BASED WORLD WIDE WEB FORMS (OR ANY OTHER FORMS CREATED
USING A TECHNOLOGY OTHER THAN AOL'S
10
PROPRIETARY FORM TECHNOLOGY) ("WEB FORMS") TO THE EXTENT SUCH RAINMAN AREA OR
WEB FORMS WILL, IN AOL'S GOOD FAITH JUDGMENT, ADVERSELY AFFECT OPERATIONS OF
THE AOL SERVICE, XXX.XXX AND THE COMPUSERVE SERVICE. MERCHANT AGREES TO
OPTIMIZE OPERATIONS OF THE MERCHANT SITE CONSISTENT WITH EXHIBIT D ATTACHED
HERETO.
4. REMOVAL OF CONTENT. AOL WILL HAVE THE RIGHT TO REMOVE, OR
DIRECT MERCHANT TO REMOVE. ANY CONTENT IN THE MERCHANT SITE (INCLUDING,
WITHOUT LIMITATION, ANY FEATURES, FUNCTIONALITY OR TECHNOLOGY) WHICH, AS
REASONABLY DETERMINED BY AOL (I) VIOLATES AOL'S THEN-STANDARD TERMS OF
SERVICE OR PRIVACY POLICY (AS SET FORTH ON THE AOL SERVICE), ANY OTHER
STANDARD, WRITTEN AOL POLICY OR THE TERMS OF THIS AGREEMENT (II) IS
INCONSISTENT IN ANY MANNER WITH THE TERMS OF THE AGREEMENT OR WITH THE
PRODUCT DESCRIPTION SET FORTH IN EXHIBIT A OR (III) IS OTHERWISE IN CONFLICT
WITH AOL'S PROGRAMMING OBJECTIVES OR ITS EXISTING CONTRACTUAL COMMITMENTS TO
THIRD PARTIES. IN ADDITION, IN THE EVENT THAT AOL REASONABLY BELIEVES THAT
SOFTWARE, TECHNOLOGY OR OTHER TECHNICAL COMPONENTS OF THE MERCHANT SITE WILL
MATERIALLY AFFECT AOL OR COMPUSERVE OR OTHER OPERATIONS, MERCHANT WILL WORK
IN GOOD FAITH WITH AOL TO LIMIT ACCESS TO SUCH COMPONENTS FROM THE AOL
SERVICE, XXX.XXX AND THE COMPUSERVE SERVICE. MERCHANT WILL TAKE ALL
COMMERCIALLY REASONABLE STEPS USING MERCHANT'S THEN-AVAILABLE TECHNOLOGY TO
BLOCK ACCESS BY AOL USERS TO CONTENT WHICH AOL DESIRES TO REMOVE OR HAVE
REMOVED PURSUANT TO ANY OF THE FOREGOING. IN THE EVENT THAT MERCHANT CANNOT,
THROUGH SUCH EFFORTS, BLOCK ACCESS TO THE CONTENT IN QUESTION, THEN MERCHANT
WILL PROVIDE AOL PROMPT WRITTEN NOTICE OF SUCH FACT NO LATER THEN FIVE (5)
DAYS AFTER AOL NOTIFIES MERCHANT OF AOL'S OBJECTION TO SUCH CONTENT, AOL MAY
THEN, AT ITS OPTION, EITHER (I) RESTRICT ACCESS BY AOL USERS TO THE CONTENT
IN QUESTION USING TECHNOLOGY AVAILABLE TO AOL OR (II) TERMINATE ALL LINKS,
PROMOTIONS AND ADVERTISEMENTS FOR THE MERCHANT SITE UNTIL SUCH TIME AS THE
CONTENT IN QUESTION IS NO LONGER DISPLAYED. MERCHANT WILL COOPERATE WITH
AOL'S REASONABLE REQUESTS TO THE EXTENT AOL ELECTS TO IMPLEMENT ANY OF THE
FOREGOING ACCESS RESTRICTIONS.
5. PROMOTIONAL PLACEMENT. MERCHANT ACKNOWLEDGES THAT THE SOLE
OBLIGATION OF AOL IS TO DISPLAY THE PROMOTION IN
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THE SHOPPING CHANNEL IN ACCORDANCE WITH THE TERMS AND CONDITION OF THE
AGREEMENT. THE SPECIFIC POSITIONING OF THE PROMOTION ON ANY SCREEN IN THE
SHOPPING CHANNEL SHALL BE AS DETERMINED BY AOL CONSISTENT WITH THE EDITORIAL
COMPOSITION OF SUCH SCREEN AND THE NATURE OF THE PROMOTION BEING PURCHASED BY
MERCHANT. AOL RESERVES THE RIGHT TO REJECT, CANCEL OR REMOVE AT ANY TIME THE
PROMOTION FOR ANY REASON WITH FIFTEEN (15) DAYS PRIOR NOTICE TO MERCHANT, AND
AOL WILL REFUND TO MERCHANT A PRO-RATA PORTION OF THE FEE ALLOCABLE TO THE
DISPLAY OF THE PROMOTION BASED ON THE NUMBER OF DAYS THAT THE PROMOTION WAS
DISPLAYED. AOL WILL NOT BE LIABLE IN ANY WAY FOR ANY REJECTION, CANCELLATION
OR REMOVAL OF THE PROMOTION. AOL RESERVES THE RIGHT TO REDESIGN OR MODIFY
THE ORGANIZATION, NAVIGATION, STRUCTURE, "LOOK AND FEEL" AND OTHER ELEMENTS
OF THE AOL SERVICE, XXX.XXX AND THE COMPUSERVE SERVICE, AT ITS SOLE
DISCRETION AT ANY TIME WITHOUT PRIOR NOTICE. IN THE EVENT SUCH MODIFICATIONS
MATERIALLY AFFECT THE PLACEMENT OF THE PROMOTION, AOL WILL NOTIFY MERCHANT
AND WILL WORK WITH MERCHANT TO DISPLAY THE PROMOTION IN A COMPARABLE LOCATION
AND MANNER. IF AOL AND MERCHANT CANNOT REACH AGREEMENT ON A SUBSTITUTE
PLACEMENT, MERCHANT WILL HAVE THE RIGHT TO CANCEL THE PROMOTION, UPON SIXTY
(60) DAYS ADVANCE WRITTEN NOTICE TO AOL. IN SUCH CASE, MERCHANT WILL ONLY BE
RESPONSIBLE FOR THE PRO-RATA PORTION OF PAYMENTS ATTRIBUTABLE TO THE PERIOD
FROM THE EFFECTIVE DATE THROUGH THE END OF THE SIXTY (60) DAY NOTICE PERIOD.
MERCHANT MAY NOT RESELL, TRADE, EXCHANGE, BARTER OR BROKER TO ANY THIRD PARTY
ANY PROMOTIONAL OR ADVERTISING SPACE WHICH IS THE SUBJECT OF THIS AGREEMENT.
MERCHANT WILL NOT BE ENTITLED TO ANY REFUND OR PRORATION FOR DELAYS CAUSED BY
MERCHANT'S FAILURE TO DELIVER TO AOL ANY MATERIALS RELATING TO THE PROMOTION.
6. PRODUCT OFFERING. MERCHANT WILL ENSURE THAT THE MERCHANT SITE
GENERALLY INCLUDES ALL OF THE PRODUCTS AND OTHER CONTENT (INCLUDING, WITHOUT
LIMITATION, ANY FEATURES, OFFERS, CONTESTS, FUNCTIONALITY OR TECHNOLOGY) THAT
ARE THEN MADE AVAILABLE BY OR AN BEHALF OF MERCHANT THROUGH ANY ADDITIONAL
MERCHANT SITE.
7. PRICING AND TERMS. MERCHANT WILL ENSURE THAT (I) THE PRICES
FOR PRODUCTS IN THE MERCHANT SITE GENERALLY DO NOT EXCEED THE PRICES FOR THE
PRODUCTS OFFERED BY OR ON BEHALF OF
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MERCHANT THROUGH ANY ADDITIONAL MERCHANT CHANNEL; AND (II) THE TERMS AND
CONDITIONS RELATED TO PRODUCTS IN THE MERCHANT SITE ARE GENERALLY NO LESS
FAVORABLE IN ANY RESPECT TO THE TERMS AND CONDITIONS FOR THE PRODUCTS OFFERED
BY OR ON BEHALF OF MERCHANT THROUGH ANY ADDITIONAL MERCHANT CHANNEL. FOR
PURPOSE OF THIS AGREEMENT MERCHANT CHANNEL MEANS ANY OTHER DISTRIBUTION
CHANNEL (E.G., AN INTERACTIVE SERVICE OTHER THAN AOL) THROUGH WHICH MERCHANT
MAKES AVAILABLE AN OFFERING COMPARABLE IN NATURE TO THE MERCHANT SITE.
8. SPECIAL OFFERS. MERCHANT WILL PROMOTE A REASONABLE NUMBER OF
SPECIAL OFFERS THROUGH THE MERCHANT SITE (E.G., OFFERS ENABLING AOL USERS TO
PURCHASE SPECIFIED PRODUCT(S) AT A SUBSTANTIAL DISCOUNT FROM PRICE OFFERED BY
MERCHANT THROUGH OTHER SALES CHANNELS, FREE GIFTS TO AOL USERS UPON THE
PURCHASE OF PRODUCT(S), THE AVAILABILITY OF PRODUCT(S) PRIOR TO THEIR
AVAILABILITY THROUGH OTHER SALES CHANNELS, AND AOL-BRANDED REWARD OR FREQUENT
PURCHASER POINTS TO AOL USERS FOR THE PURCHASE OF PRODUCT(S)) (THE "SPECIAL
OFFERS"). MERCHANT WILL PROVIDE AOL WITH REASONABLE PRIOR NOTICE OF SPECIAL
OFFERS SO THAT AOL CAN MARKET THE AVAILABILITY OF SUCH SPECIAL OFFERS IN THE
MANNER AOL DEEMS APPROPRIATE IN ITS EDITORIAL DISCRETION.
9. CUSTOMER SERVICE. IT IS THE SOLE RESPONSIBILITY OF MERCHANT
TO PROVIDE CUSTOMER SERVICE TO PERSONS OR ENTITIES PURCHASING PRODUCTS
THROUGH THE AOL SERVICE, XXX.XXX OR THE COMPUSERVE SERVICE ("CUSTOMERS").
MERCHANT WILL BEAR FULL RESPONSIBILITY FOR ALL CUSTOMER SERVICE, INCLUDING
WITHOUT LIMITATION, ORDER PROCESSING, BILLING, FULFILLMENT, SHIPMENT,
COLLECTION AND OTHER CUSTOMER SERVICE ASSOCIATED WITH ANY PRODUCTS OFFERED,
SOLD OR LICENSED THROUGH EACH MERCHANT SITE, AND AOL WILL HAVE NO OBLIGATIONS
WHATSOEVER WITH RESPECT THERETO. MERCHANT WILL RECEIVE ALL EMAILS FROM
CUSTOMERS VIA A COMPUTER AVAILABLE TO MERCHANT'S CUSTOMER SERVICE STAFF AND
GENERALLY RESPOND TO SUCH EMAILS WITHIN ONE BUSINESS DAY OF RECEIPT.
MERCHANT WILL RECEIVE ALL ORDERS ELECTRONICALLY AND GENERALLY PROCESS ALL
ORDERS WITHIN ONE BUSINESS DAY OF RECEIPT, PROVIDED PRODUCTS ORDERED ARE NOT
ADVANCE ORDER ITEMS. MERCHANT WILL ENSURE THAT ALL ORDERS OF PRODUCTS ARE
RECEIVED, PROCESSED, FULFILLED AND DELIVERED ON A TIMELY AND PROFESSIONAL
BASIS. MERCHANT WILL OFFER AOL USERS WHO PURCHASE PRODUCTS THROUGH SUCH THE
MERCHANT SITE A MONEY-
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BACK SATISFACTION GUARANTEE. MERCHANT WILL BEAR ALL RESPONSIBILITY FOR
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS IN THE EVENT THAT PRODUCTS ARE
OUT OF STOCK OR ARE NO LONGER AVAILABLE AT THE TIME AN ORDER IS RECEIVED.
MERCHANT WILL ALSO COMPLY WITH THE REQUIREMENTS OF ANY FEDERAL, STATE OR
LOCAL CONSUMER PROTECTION OR DISCLOSURE LAW. PAYMENT FOR PRODUCTS WILL BE
COLLECTED BY MERCHANT DIRECTLY FROM CUSTOMERS. MERCHANT'S ORDER FULFILLMENT
OPERATION WILL BE SUBJECT TO AOL'S REASONABLE REVIEW.
10. LAUNCH DATES. IN THE EVENT THAT ANY TERMS CONTAINED HEREIN
RELATE TO OR DEPEND ON THE COMMERCIAL LAUNCH DATE OF THE ONLINE AREA OR OTHER
PROPERTY CONTEMPLATED BY THIS AGREEMENT (THE "LAUNCH DATE"), THEN IT IS THE
INTENTION OF THE PARTIES TO RECORD SUCH LAUNCH DATE IN A WRITTEN INSTRUMENT
SIGNED BY BOTH PARTIES PROMPTLY FOLLOWING SUCH LAUNCH DATE; PROVIDED THAT, IN
THE ABSENCE OF SUCH A WRITTEN INSTRUMENT THE LAUNCH DATE WILL BE AS
REASONABLY DETERMINED BY AOL BASED ON THE INFORMATION AVAILABLE TO AOL.
11. MERCHANT CERTIFICATION PROGRAM. MERCHANT WILL PARTICIPATE IN
ANY GENERALLY APPLICABLE "CERTIFIED MERCHANT" PROGRAM OPERATED BY AOL OR ITS
AUTHORIZED AGENTS OR CONTRACTORS. SUCH PROGRAM MAY REQUIRE MERCHANT
PARTICIPANTS ON AN ONGOING BASIS TO MEET CERTAIN REASONABLE STANDARDS
RELATING TO PROVISION OF ELECTRONIC COMMERCE THROUGH THE AOL SERVICE, XXX.XXX
AND THE COMPUSERVE SERVICE AND MAY ALSO REQUIRE THE PAYMENT OF CERTAIN
REASONABLE CERTIFICATION FEES TO AOL OR ITS AUTHORIZED AGENTS OF CONTRACTORS
OPERATING THE PROGRAM. MERCHANT AGREES TO (I) PARTICIPATE IN THE
BIZRATE-REGISTERED TRADEMARK- PROGRAM, A SERVICE OFFERED BY BINARY COMPASS
ENTERPRISES, INC. (BCE), WHICH PROVIDES OPT-IN SATISFACTION SURVEYS TO USERS
WHO PURCHASE PRODUCTS THROUGH SUCH MERCHANT SITE, OR SUCH OTHER PROVIDER OF
SUCH SERVICES AS AOL MAY DESIGNATE OR APPROVE FROM TIME TO TIME, AND (II)
PROVIDE A LINK TO BIZRATE'S THEN-CURRENT STANDARD SURVEY FORMS. OR SUCH OTHER
SURVEY FORMS OFFERED BY ANY OTHER PARTY THAT AOL MAY REASONABLY DESIGNATE OR
APPROVE FROM TIME TO TIME. MERCHANT PARTICIPATION SHALL BE BASED UPON A
SEPARATE WRITTEN AGREEMENT WHICH MERCHANT WILL ENTER INTO WITH BCE, OR OTHER
SUCH PARTY REASONABLY DESIGNATED OR APPROVED BY AOL. MERCHANT HEREBY
AUTHORIZES BCE TO PROVIDE TO AOL ANY AND ALL
14
REPORTS PROVIDED TO MERCHANT BY BCE, OR OTHER THIRD PARTY PROVIDING SUCH
SERVICES. AND AGREES TO PROVIDE WRITTEN NOTICE OF SUCH AUTHORIZATION TO BCE,
OR SUCH OTHER THIRD PARTY.
15
EXHIBIT C
STANDARD LEGAL TERMS AND CONDITIONS
1. PRODUCTION AND TECHNICAL SERVICES. UNLESS EXPRESSLY PROVIDED
FOR ELSEWHERE IN THE SHOPPING CHANNEL PROMOTIONAL AGREEMENT WHICH HAS BEEN
EXECUTED BY AOL AND MERCHANT (THE "PROMOTIONAL AGREEMENT" AND COLLECTIVELY
WITH THESE STANDARD LEGAL TERMS AND CONDITIONS THE "AGREEMENT") AGREEMENT,
(I) AOL WILL HAVE NO OBLIGATION TO PROVIDE ANY CREATIVE, DESIGN, TECHNICAL OR
PRODUCTION SERVICES TO MERCHANT AND (II) THE NATURE AND EXTENT OF ANY SUCH
SERVICES WHICH AOL MAY PROVIDE TO MERCHANT WILL BE AS DETERMINED BY AOL IN
ITS SOLE DISCRETION. THE TERMS REGARDING ANY CREATIVE DESIGN, TECHNICAL OR
PRODUCTIONS SERVICES PROVIDED BY AOL TO MERCHANT WILL BE AS MUTUALLY AGREED
UPON BY THE PARTIES IN A SEPARATE WRITTEN WORK ORDER.
2. AOL ACCOUNTS. TO THE EXTENT MERCHANT HAS BEEN GRANTED ANY AOL
ACCOUNTS, MERCHANT WILL BE RESPONSIBLE FOR THE ACTIONS TAKEN UNDER OR THROUGH
ITS ACCOUNTS, WHICH ACTIONS ARE SUBJECT TO AOL'S APPLICABLE TERMS OF SERVICE
AND FOR ANY SURCHARGES, INCLUDING, WITHOUT LIMITATION, ALL PREMIUM CHARGES,
TRANSACTION CHARGES, AND ANY APPLICABLE COMMUNICATION SURCHARGES INCURRED BY
ANY ACCOUNT ISSUED TO MERCHANT. UPON THE TERMINATION OF THIS AGREEMENT, ALL
SUCH ACCOUNTS, RELATED SCREEN NAMES AND ANY ASSOCIATED USAGE CREDITS OR
SIMILAR RIGHTS WILL AUTOMATICALLY TERMINATE. AOL WILL HAVE NO LIABILITY FOR
LOSS OF ANY DATA OR CONTENT RELATED TO THE PROPER TERMINATION OF ANY SUCH
ACCOUNT.
3. TAXES. MERCHANT WILL COLLECT AND PAY AND INDEMNIFY AND HOLD
AOL HARMLESS FROM, ANY SALES, USE, EXCISE, IMPORT OR EXPORT VALUE ADDED OR
SIMILAR TAX OR DUTY NOT BASED ON AOL'S NET INCOME, INCLUDING ANY PENALTIES
AND INTEREST, AS WELL AS ANY COSTS ASSOCIATED WITH THE COLLECTION OR
WITHHOLDING THEREOF, INCLUDING ATTORNEYS' FEES.
4. PROMOTIONAL MATERIALS/PRESS RELEASES. EACH PARTY WILL SUBMIT
TO THE OTHER PARTY, FOR ITS PRIOR WRITTEN APPROVAL, WHICH WILL NOT BE
UNREASONABLY WITHHELD OR DELAYED, ANY MARKETING, ADVERTISING, AND ALL OTHER
PROMOTIONAL MATERIALS
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RELATED TO THE MERCHANT SITE AND/OR REFERENCING THE OTHER PARTY AND/OR ITS
TRADE NAMES, TRADEMARKS, AND SERVICE MARKS; PROVIDED, HOWEVER, THAT (A)
EITHER PARTY'S USE OF SCREEN SHOTS OF THE MERCHANT SITE FOR PROMOTIONAL
PURPOSES AND (B) EITHER PARTY'S REFERENCE TO THE FACT OF THE PARTIES'
CONTRACTUAL RELATIONSHIP RELATING TO THE SHOPPING CHANNEL WILL NOT REQUIRE
THE APPROVAL OF THE OTHER PARTY SO LONG AS, IN THE CASE OF (A), THE AOL
SERVICE, XXX.XXX AND THE COMPUSERVE SERVICE (AS APPLICABLE) IS CLEARLY
IDENTIFIED AS THE SOURCE OF SUCH SCREEN SHOTS. MERCHANT WILL NOT (I) ISSUE
ANY PRESS RELEASE, PROMOTIONS OR PUBLIC STATEMENTS CONCERNING THE EXISTENCE
OR TERMS OF THE AGREEMENT OR (II) USE, DISPLAY OR MODIFY AOL'S TRADEMARKS,
TRADENAMES OR SERVICEMARKS IN ANY MANNER, ABSENT AOL'S EXPRESS PRIOR WRITTEN
APPROVAL. NOTWITHSTANDING THE FOREGOING, (A) EITHER PARTY MAY ISSUE PRESS
RELEASES AND OTHER DISCLOSURES AS REQUIRED BY LAW, OR AS REASONABLY ADVISED
BY LEGAL COUNSEL WITHOUT THE CONSENT OF THE OTHER PARTY AND IN SUCH EVENT,
PROMPT NOTICE THEREOF WILL BE PROVIDED TO THE OTHER PARTY AND (B) FOLLOWING
THE INITIAL PUBLIC ANNOUNCEMENT OF THE BUSINESS RELATIONSHIP BETWEEN THE
PARTIES IN ACCORDANCE WITH THE APPROVAL AND OTHER REQUIREMENTS CONTAINED
HEREIN, EITHER PARTY'S SUBSEQUENT FACTUAL REFERENCE TO THE EXISTENCE OF A
BUSINESS RELATIONSHIP BETWEEN THE PARTIES WILL NOT REQUIRE THE APPROVAL OF
THE OTHER PARTY.
5. REPRESENTATIONS AND WARRANTIES. EACH PARTY REPRESENTS AND
WARRANTS TO THE OTHER PARTY THAT: (I) SUCH PARTY HAS THE FULL CORPORATE
RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT AND TO PERFORM THE
ACTS REQUIRED OF IT HEREUNDER; (II) THE EXECUTION OF THE AGREEMENT BY SUCH
PARTY, AND THE PERFORMANCE OF SUCH PARTY OF ITS OBLIGATIONS AND DUTIES
HEREUNDER DO NOT AND WILL NOT VIOLATE ANY AGREEMENT TO WHICH SUCH PARTY IS A
PARTY OR BY WHICH IT IS OTHERWISE BOUND; (III) WHEN EXECUTED AND DELIVERED BY
SUCH PARTY, THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID AND BINDING
OBLIGATION OF SUCH PARTY, ENFORCEABLE AGAINST SUCH PARTY IN ACCORDANCE WITH
ITS TERMS; AND (IV) SUCH PARTY ACKNOWLEDGES THAT THE OTHER PARTY MAKES NO
REPRESENTATIONS, WARRANTIES OR AGREEMENTS RELATED TO THE SUBJECT MATTER
HEREOF THAT ARE NOT EXPRESSLY PROVIDED FOR THE AGREEMENT.
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6. LICENSE. MERCHANT HEREBY GRANTS AOL A NON-EXCLUSIVE WORLDWIDE
LICENSE TO MARKET, LICENSE, DISTRIBUTE, REPRODUCE, DISPLAY, PERFORM, TRANSMIT
AND PROMOTE THE MERCHANT SITE AND ALL CONTENT PRODUCTS AND SERVICES OFFERED
THEREIN OR OTHERWISE PROVIDED BY MERCHANT IN CONNECTION HEREWITH (E.G.,
OFFLINE OR ONLINE PROMOTION CONTENT, PROMOTIONS, ETC.) THROUGH THE AOL
SERVICE, XXX.XXX AND THE COMPUSERVE SERVICE AND THROUGH ANY OTHER PRODUCT OR
SERVICE OWNED, OPERATED, DISTRIBUTED OR AUTHORIZED TO BE DISTRIBUTED BY OR
THROUGH AOL ON ITS AFFILIATES WORLDWIDE THROUGH WHICH SUCH PARTY ELECTS TO
OFFER THE MERCHANT SITE (WHICH MAY INCLUDE, WITHOUT LIMITATION, INTERNET
SITES PROMOTING AOL PRODUCTS AND SERVICES AND ANY "OFFLINE" INFORMATION
BROWSING PRODUCTS OF AOL OR ITS AFFILIATES). USERS OF THE AOL SERVICE,
XXX.XXX AND THE COMPUSERVE SERVICE (AS APPLICABLE) ("AOL USERS") WILL HAVE
THE RIGHT TO ACCESS AND USE THE MERCHANT SITE. SUBJECT TO SUCH LICENSE,
MERCHANT RETAINS ALL RIGHT, TITLE TO AND INTEREST IN THE MERCHANT SITE.
DURING THE TERM, AOL WILL HAVE THE RIGHT TO USE MERCHANT'S TRADEMARKS, TRADE
NAMES AND SERVICE MARKS IN CONNECTION WITH PERFORMANCE OF THIS AGREEMENT,
SUBJECT TO ANY WRITTEN GUIDELINES PROVIDED IN WRITING TO AOL.
7. CONFIDENTIALITY. EACH PARTY ACKNOWLEDGES THAT CONFIDENTIAL
INFORMATION MAY BE DISCLOSED TO THE OTHER PARTY DURING THE COURSE OF THIS
AGREEMENT. EACH PARTY AGREES THAT IT WILL TAKE REASONABLE STEPS, AT LEAST
SUBSTANTIALLY EQUIVALENT TO THE STEPS IT TAKES TO PROJECT ITS OWN PROPRIETARY
INFORMATION, DURING THE TERM OF THIS AGREEMENT, AND FOR A PERIOD OF THREE
YEARS FOLLOWING EXPIRATION OR TERMINATION OF THIS AGREEMENT, TO PREVENT THE
DUPLICATION OR DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY,
OTHER THAN BY OR TO ITS EMPLOYEES OR AGENTS WHO MUST HAVE ACCESS TO SUCH
CONFIDENTIAL INFORMATION TO PERFORM SUCH PARTY'S OBLIGATIONS HEREUNDER, WHO
WILL EACH AGREE TO COMPLY WITH THIS PROVISION. "CONFIDENTIAL INFORMATION"
MEANS ANY INFORMATION RELATING TO OR DISCLOSED IN THE COURSE OF THE
AGREEMENT, WHICH IS OR SHOULD BE REASONABLY UNDERSTOOD TO BE CONFIDENTIAL OR
PROPRIETARY TO THE DISCLOSING PARTY, INCLUDING, BUT NOT LIMITED TO, THE
MATERIAL TERMS OF THIS AGREEMENT, INFORMATION ABOUT AOL USERS, TECHNICAL
PROCESSES AND FORMULAS, SOURCE CODES, PRODUCT DESIGNS, SALES, COST AND OTHER
UNPUBLISHED FINANCIAL INFORMATION, PRODUCT AND BUSINESS PLANS, PROJECTIONS,
18
AND MARKETING DATA. "CONFIDENTIAL INFORMATION" WILL NOT INCLUDE INFORMATION
(A) ALREADY LAWFULLY KNOWN TO OR INDEPENDENTLY DEVELOPED BY THE RECEIVING
PARTY, (B) DISCLOSED IN PUBLISHED MATERIALS, (C) GENERALLY KNOWN TO THE
PUBLIC, (D) LAWFULLY OBTAINED FROM ANY THIRD PARTY, OR (E) REQUIRED OR
REASONABLY ADVISED TO BE DISCLOSED BY LAW.
8. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
(A) LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS,
THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, XXX.XXX, THE
COMPUSERVE SERVICE OR THE MERCHANT SITE, OR ARISING FROM ANY OTHER PROVISION
OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES");
PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT
ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO
INDEMNIFICATION PURSUANT TO PARAGRAPH (C) BELOW. EXCEPT AS PROVIDED TO
PARAGRAPH (C) BELOW, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE
LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) AOL WILL NOT BE
LIABLE TO MERCHANT UNDER THE AGREEMENT FOR MORE THAN THE AMOUNTS THEN PAID TO
AOL BY MERCHANT HEREUNDER.
(B) NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH
IN THE AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING
XXX.XXX, THE AOL SERVICE OR NETWORK, THE COMPUSERVE SERVICE OR THE MERCHANT
SITE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) THE PROFITABILITY OF THE
MERCHANT SITE, (II) THE NUMBER OF PERSONS WHO WILL ACCESS OR "CLICK THROUGH"
THE PROMOTION, (III) ANY BENEFIT MERCHANT MIGHT OBTAIN FROM INCLUDING THE
PROMOTION WITHIN THE AOL SERVICE, XXX.XXX OR THE COMPUSERVE SERVICE OR (IV)
THE FUNCTIONALITY,
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PERFORMANCE OR OPERATION OF THE AOL OR COMPUSERVE SERVICES WITH RESPECT TO
THE PROMOTION.
(C) INDEMNITY. Either Party will defend, indemnify, save and
hold harmless the other Party and the officers, directors, agents,
affiliates, distributors, franchisees and employees of the other Party from
any and all third party claims, demands, liabilities, costs or expenses,
including reasonable attorneys' fees ("Liabilities"), resulting from the
indemnifying Party's material breach of any duty, representation, or warranty
of the Agreement, except where Liabilities result from the gross negligence
or knowing and willful misconduct of the other Party.
(D) CLAIMS. If a Party entitled to indemnification hereunder
(the "Indemnified Party") becomes aware of any matter it believes is
indemnifiable hereunder involving any claim, action, suit, investigation,
arbitration or other proceeding against the Indemnified Party by any third
party (each an "Action"), the Indemnified Party will give the other Party
(the "Indemnifying Party") prompt written notice of such Action. Such notice
will (i) provide the basis on which indemnification is being asserted and
(ii) be accompanied by copies of all relevant pleadings, demands, and other
papers related to the Action and in the possession of the Indemnified Party.
The Indemnifying Party will have a period of ten (10) days after delivery of
such notice to respond. If the Indemnifying Party elects to defend the
Action or does not respond within the requisite ten (10) day period, the
Indemnifying Party will be obligated to defend the Action, at its own
expense, and by counsel reasonably satisfactory to the Indemnified Party.
The Indemnified Party will cooperate, at the expense of the Indemnifying
Party, with the Indemnifying Party and its counsel in the defense and the
Indemnified Party will have the right to participate fully, at its own
expense, in the defense of such Action. If the Indemnifying Party responds
within the required ten (10) day period and elects not to defend such Action,
the Indemnified Party shall be free, without prejudice to any of the
Indemnified Party's rights hereunder, to compromise or defend (and control
the defense of) such Action. In such case, the Indemnifying Party will
cooperate, at its own expense, with the Indemnified Party and its counsel in
the defense against such Action and the Indemnifying Party will have the
right to participate fully, at its own expense, in the defense of such
Action. Any compromise or settlement of an Action will require the prior
written consent of both Parties hereunder, such consent not to be
unreasonably withheld or delayed.
(E) ACKNOWLEDGMENT. AOL and MERCHANT each acknowledge that
the provisions of this Agreement were negotiated to reflect an informed,
voluntary allocation between them of all risks (both known and unknown)
associated with the transactions contemplated hereunder. The limitations and
disclaimers related to warranties and liability contained in the Agreement
are intended to limit the circumstances and extent of liability. The
provisions in paragraphs (a) through (d) above
20
and this paragraph (e) will be enforceable independent of and severable from
any other enforceable or unenforceable provision of this Agreement.
9. SOLICITATION OF SUBSCRIBERS.
(a) MERCHANT will not send unsolicited, commercial e-mail
through or into AOL's products or services, absent a Prior Business
Relationship. For purposes of this Agreement, a "Prior Business
Relationship" will mean that the AOL User to whom commercial e-mail is being
sent has voluntarily either (i) engaged in a transaction with MERCHANT or
(ii) provided information to MERCHANT through a contest, registration, on
other communication, which included notice to the AOL User that the
information provided could result in commercial e-mail being sent to that AOL
User by MERCHANT or its agents. More generally, any commercial e-mail to be
sent through or into AOL's products or service shall be subject to AOL's
then-standard restrictions on distribution of bulk e-mail (e.g., related to
the time and manner in which such e-mail can be distributed through the AOL
service in question) and the limitations set forth in Exhibit B.
(b) MERCHANT shall ensure that its collection, use and
disclosure of Information obtained from AOL Users under this Agreement ("User
Information") complies with (i) all applicable laws and regulations and (ii)
AOL's standard privacy policies, available on the AOL Service at the keyword
term "Privacy."
(c) MERCHANT will not disclose User Information to any third
party in a manner that identifies AOL User as end users of an AOL product or
service or use User Information collected under this Agreement to market an
interactive Service competitive with AOL; provided that the restrictions in
this subsection (c) shall not restrict MERCHANT's use of any information
collected independently of this Agreement. For the purpose of this
Agreement, the term "Interactive Service Provider" shall mean and refer to an
entity offering one or more of the following: (i) online or Internet
connectivity services (e.g., an Internet service provider); (ii) a broad
selection of aggregated third party interactive content (or navigation
thereto) (e.g., an online service or search and directory service); (iii)
communications software capable of serving as the principal means through
which a user creates, sends and receives electronic mail or real time online
messages.
10. AOL USER COMMUNICATIONS. TO THE EXTENT MERCHANT SENDS ANY
FORM OF COMMUNICATIONS TO AOL USERS, MERCHANT WILL PROMOTE THE MERCHANT SITE
AS THE LOCATION AT WHICH TO PURCHASE PRODUCTS (AS COMPARED TO ANY MORE
GENERAL OR OTHER SITE OR LOCATION). IN ADDITION, IN ANY COMMUNICATION TO AOL
USERS OR ON THE MERCHANT SITE, MERCHANT WILL NOT ENCOURAGE AOL USERS TO TAKE
ANY ACTION INCONSISTENT WITH THE SCOPE AND
21
PURPOSE OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE FOLLOWING
ACTIONS: (A) USING INTERACTIVE SITES; OTHER THAN THE MERCHANT SITE; (B)
BOOKMARKING OF OTHER INTERACTIVE SITES, (C) CHANGING THE DEFAULT HOME PAGE ON
THE AOL BROWSER; OR (D) USING ANY INTERACTIVE SERVICE OTHER THAN THE AOL AND
COMPUSERVE SERVICES.
11. NAVIGATION TOOLS. THE KEYWORD-TM- ONLINE SEARCH TERMS MADE
AVAILABLE ON THE AOL SERVICE FOR USE BY AOL MEMBERS, COMBINING AOL'S
KEYWORD-TM- ONLINE SEARCH MODIFIER WITH A TERM OR PHRASE SPECIFICALLY RELATED
TO MERCHANT (AND DETERMINED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT).
ANY KEYWORD SEARCH TERMS TO BE DIRECTED TO MERCHANT'S SITE SHALL BE (I)
SUBJECT TO AVAILABILITY AND (II) LIMITED TO THE COMBINATION OF THE
KEYWORD-TM- SEARCH MODIFIER COMBINED WITH A REGISTERED TRADEMARK OF MERCHANT.
AOL RESERVES THE RIGHT AT ANY TIME TO REVOKE MERCHANT'S USE OF ANY KEYWORDS
THAT ARE NOT REGISTERED TRADEMARKS OF MERCHANT. MERCHANT ACKNOWLEDGES THAT
ITS UTILIZATION OF A KEYWORD SEARCH TERM WILL NOT CREATE IN IT, NOR WILL IT
REPRESENT IT HAS, ANY RIGHT, TITLE OR INTEREST IN OR TO SUCH KEYWORD SEARCH
TERM, OTHER THAN THE RIGHT, TITLE AND INTEREST MERCHANT HOLDS IN MERCHANT'S
REGISTERED TRADEMARK INDEPENDENT OF THE KEYWORD SEARCH TERM. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, MERCHANT WILL NOT: (A) ATTEMPT TO
REGISTER OR OTHERWISE OBTAIN TRADEMARK OR COPYRIGHT PROTECTION IN THE KEYWORD
SEARCH TERM; OR (B) USE THE KEYWORD SEARCH TERM, EXCEPT FOR THE PURPOSES
EXPRESSLY REQUIRED OR PERMITTED UNDER THIS AGREEMENT. TO THE EXTENT AOL
ALLOWS AOL USERS TO "BOOKMARK" THE URL OR OTHER LOCATOR FOR THE MERCHANT
SITE, SUCH BOOKMARKS WILL BE SUBJECT TO AOL'S CONTROL AT ALL TIMES. UPON THE
TERMINATION OF THIS AGREEMENT, MERCHANT'S RIGHTS TO ANY KEYWORDS AND
BOOKMARKING WILL TERMINATE. FOR PURPOSES OF THIS AGREEMENT, "KEYWORD SEARCH
TERMS" SHALL MEAN THE KEYWORD-TM- ONLINE SEARCH TERMS MADE AVAILABLE ON THE
AOL SERVICE FOR USE BY AOL MEMBERS, COMBINING AOL'S KEYWORD-TM- ONLINE SEARCH
MODIFIER WITH A TERM OR PHRASE SPECIFICALLY RELATED TO MERCHANT (AND
DETERMINED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT).
12. MISCELLANEOUS. NEITHER PARTY WILL BE LIABLE FOR, OR BE
CONSIDERED IN BREACH OF OR DEFAULT UNDER THE AGREEMENT ON ACCOUNT OF, ANY
DELAY OR FAILURE TO PERFORM AS REQUIRED BY THE
22
AGREEMENT (EXCEPT WITH RESPECT TO PAYMENT OBLIGATIONS) AS A RESULT OF ANY
CAUSES OR CONDITIONS WHICH ARE BEYOND SUCH PARTY'S REASONABLE CONTROL AND
WHICH SUCH PARTY IS UNABLE TO OVERCOME BY THE EXERCISE OF REASONABLE
DILIGENCE. MERCHANT'S RIGHTS, DUTIES, AND OBLIGATIONS UNDER THE AGREEMENT
ARE NOT TRANSFERABLE. THE PARTIES TO THE AGREEMENT ARE INDEPENDENT
CONTRACTORS. NEITHER PARTY IS AN AGENT, REPRESENTATIVE OR PARTNER OF THE
OTHER PARTY. NEITHER PARTY WILL HAVE ANY RIGHT, POWER OR AUTHORITY TO ENTER
INTO ANY AGREEMENT FOR OR ON BEHALF OF, OR INCUR ANY OBLIGATION OR LIABILITY
OF, OR TO OTHERWISE BIND, THE OTHER PARTY. THE FAILURE OF EITHER PARTY TO
INSIST UPON OR ENFORCE STRICT PERFORMANCE BY THE OTHER PARTY OF ANY PROVISION
OF THE AGREEMENT OR TO EXERCISE ANY RIGHT UNDER THE AGREEMENT WILL NOT BE
CONSTRUED AS A WAIVER OR RELINQUISHMENT TO ANY EXTENT OF SUCH PARTY'S RIGHT
TO ASSERT OR RELY UPON ANY SUCH PROVISION OR RIGHT IN THAT OR ANY OTHER
INSTANCE; RATHER, THE SAME WILL BE AND REMAIN IN FULL FORCE AND EFFECT.
SECTIONS 3, 4, 7, 8, 9, 10, 11 AND 12 OF THESE STANDARD LEGAL TERMS AND
CONDITIONS WILL SURVIVE THE COMPLETION, EXPIRATION, TERMINATION OR
CANCELLATION OF THE PROMOTIONAL AGREEMENT. EITHER PARTY MAY TERMINATE THE
AGREEMENT AT ANY TIME WITH WRITTEN NOTICE TO THE OTHER PARTY IN THE EVENT OF
A MATERIAL BREACH OF THE AGREEMENT BY THE OTHER PARTY, WHICH REMAINS UNCURED
AFTER THIRTY DAYS WRITTEN NOTICE THEREOF. ANY NOTICE, APPROVAL, REQUEST,
AUTHORIZATION, DIRECTION OR OTHER COMMUNICATION UNDER THIS AGREEMENT WILL BE
GIVEN IN WRITING AND WILL BE DEEMED TO HAVE BEEN DELIVERED AND GIVEN FOR ALL
PURPOSES (I) ON THE DELIVERY DATE IF DELIVERED BY ELECTRONIC MAIL ON AOL'S
NETWORK OR SYSTEMS (TO SCREENNAME "XXXXXXXXX@XXX.XXX" IN THE CASE OF AOL) OR
BY CONFIRMED FACSIMILE; (II) ON THE DELIVERY DATE IF DELIVERED PERSONALLY TO
THE PARTY TO WHOM THE SAME IS DIRECTED; (III) ONE BUSINESS DAY AFTER DEPOSIT
WITH A COMMERCIAL OVERNIGHT CARRIER, WITH WRITTEN VERIFICATION OF RECEIPT; OR
(IV) FIVE BUSINESS DAYS AFTER THE MAILING DATE, WHETHER OR NOT ACTUALLY
RECEIVED, IF SENT BY U.S. MAIL, RETURN RECEIPT REQUESTED, POSTAGE AND CHARGES
PREPAID, OR ANY OTHER MEANS OF RAPID MAIL DELIVERY FOR WHICH A RECEIPT IS
AVAILABLE. IN THE CASE OF AOL, SUCH NOTICE WILL BE PROVIDED TO BOTH THE
SENIOR VICE PRESIDENT FOR BUSINESS AFFAIRS (FAX NO. 000-000-0000) AND THE
DEPUTY GENERAL COUNSEL (FAX NO. 000-000-0000), EACH AT THE ADDRESS OF AOL SET
FORTH IN THE FIRST
23
PARAGRAPH OF THIS AGREEMENT. IN THE CASE OF MERCHANT, EXCEPT AS OTHERWISE
SPECIFIED HEREIN, THE NOTICE ADDRESS WILL BE THE ADDRESS FOR MERCHANT SET
FORTH IN THE FIRST PARAGRAPH OF THIS AGREEMENT WITH THE OTHER RELEVANT NOTICE
INFORMATION, INCLUDING THE RECIPIENT FOR NOTICE AND, AS APPLICABLE, SUCH
RECIPIENT'S FAX NUMBER OR AOL EMAIL ADDRESS, TO BE AS REASONABLY IDENTIFIED
BY AOL. THE AGREEMENT SETS FORTH THE ENTIRE AGREEMENT BETWEEN MERCHANT AND
AOL, AND SUPERSEDES ANY AND ALL PRIOR AGREEMENTS OF AOL OR MERCHANT WITH
RESPECT TO THE TRANSACTIONS SET FORTH HEREIN, BUT MAKES EXCEPTION FOR THE
CONTINUANCE OF THE TERMS ESTABLISHED IN THE ADDENDUM TO LICENSE STAR SOFTWARE
WHICH SHALL REMAIN IN FULL FORCE AND EFFECT FOR THE DURATION OF THIS
AGREEMENT. NO CHANGE, AMENDMENT OR MODIFICATION OF ANY PROVISION OF THE
AGREEMENT WILL BE VALID UNLESS SET FORTH IN A WRITTEN INSTRUMENT SIGNED BY
THE PARTY SUBJECT TO ENFORCEMENT OF SUCH AMENDMENT. MERCHANT WILL PROMPTLY
INFORM AOL OF ANY INFORMATION RELATED TO THE MERCHANT SITE WHICH COULD
REASONABLY LEAD TO A CLAIM, DEMAND, OR LIABILITY OF OR AGAINST AOL AND/OR ITS
AFFILIATES BY ANY THIRD PARTY. MERCHANT WILL NOT ASSIGN THIS AGREEMENT OR
ANY RIGHT, INTEREST OR BENEFIT UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN
CONSENT OF AOL. ASSUMPTION OF THE AGREEMENT BY ANY SUCCESSOR TO MERCHANT
(INCLUDING, WITHOUT LIMITATION, BY WAY OF MERGER, CONSOLIDATION OR SALE OF
ALL OR SUBSTANTIALLY ALL OF MERCHANT'S STOCK OR ASSETS) WILL BE SUBJECT TO
AOL'S PRIOR WRITTEN APPROVAL. SUBJECT TO THE FOREGOING, THIS AGREEMENT WILL
BE FULLY BINDING UPON, INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE
PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. EXCEPT WHERE
OTHERWISE SPECIFIED HEREIN, THE RIGHTS AND REMEDIES GRANTED TO A PARTY UNDER
THE AGREEMENT ARE CUMULATIVE AND IN ADDITION TO, AND NOT IN LIEU OF, ANY
OTHER RIGHTS OR REMEDIES WHICH THE PARTY MAY POSSESS AT LAW OR IN EQUITY. IN
THE EVENT THAT ANY PROVISION OF THE AGREEMENT IS HELD INVALID BY A COURT WITH
JURISDICTION OVER THE PARTIES TO THE AGREEMENT, (I) SUCH PROVISION WILL BE
DEEMED TO BE RESTATED TO REFLECT AS NEARLY AS POSSIBLE THE ORIGINAL
INTENTIONS OF THE PARTIES IN ACCORDANCE WITH APPLICABLE LAW AND (II) THE
REMAINING TERMS, PROVISIONS, COVENANTS AND RESTRICTIONS OF THIS AGREEMENT
WILL REMAIN IN FULL FORCE AND EFFECT. THE AGREEMENT MAY BE EXECUTED IN
COUNTERPARTS, EACH
24
OF WHICH WILL BE DEEMED AN ORIGINAL AND ALL OF WHICH TOGETHER WILL CONSTITUTE
ONE AND THE SAME DOCUMENT. THE AGREEMENT WILL BE INTERPRETED, CONSTRUED AND
ENFORCED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
VIRGINIA, EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. MERCHANT HEREBY
IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE
COMMONWEALTH OF VIRGINIA AND THE FEDERAL COURTS THEREIN IN CONNECTION WITH
ANY ACTION ARISING UNDER THIS AGREEMENT.
25
EXHIBIT D
OPERATIONS
1. CAPACITY. MERCHANT WILL BE RESPONSIBLE FOR ALL
COMMUNICATIONS, HOSTING AND CONNECTIVITY COSTS AND EXPENSES ASSOCIATED WITH
THE MERCHANT SITE. MERCHANT WILL PROVIDE ALL HARDWARE, SOFTWARE,
TELECOMMUNICATIONS LINES AND OTHER INFRASTRUCTURE NECESSARY TO MEET TRAFFIC
DEMANDS ON THE MERCHANT SITE FROM THE AOL SERVICE, XXX.XXX AND THE COMPUSERVE
SERVICE, EXCEPT FOR THE PROPRIETARY CLIENT SOFTWARE NECESSARY TO ACCESS THE
AOL AND COMPUSERVE SERVICES. IN THE EVENT THAT MERCHANT FAILS TO PROVIDE THE
REQUISITE INFRASTRUCTURE, AOL WILL HAVE THE RIGHT TO REGULATE THE PROMOTIONS
IT PROVIDES TO MERCHANT HEREUNDER TO THE EXTENT NECESSARY TO MINIMIZE USER
DELAYS UNTIL SUCH TIME AS MERCHANT CORRECTS ITS INFRASTRUCTURE DEFICIENCIES.
IN THE EVENT THAT MERCHANT ELECTS TO CREATE A CUSTOM VERSION OF THE MERCHANT
SITE IN ORDER TO COMPLY WITH THE TERMS OF THIS AGREEMENT, MERCHANT WILL BEAR
RESPONSIBILITY FOR THE IMPLEMENTATION, MANAGEMENT AND COST OF SUCH MIRRORED
SITE.
2. OPTIMIZATION; SPEED. MERCHANT WILL USE COMMERCIALLY
REASONABLE EFFORTS TO ENSURE THAT: (A) THE FUNCTIONALITY AND FEATURES WITHIN
THE MERCHANT SITE ARE OPTIMIZED FOR THE CLIENT SOFTWARE THEN IN USE BY AOL
USERS; AND (B) THE MERCHANT SITE IS DESIGNED AND POPULATED IN A MANNER THAT
MINIMIZES DELAYS WHEN AOL USERS ATTEMPT TO ACCESS SUCH SITE. AT A MINIMUM,
MERCHANT WILL ENSURE THAT THE MERCHANT SITE'S DATA TRANSFERS INITIATE WITHIN
FEWER THAN FIFTEEN (15) SECONDS ON AVERAGE.
3. SERVICE LEVEL RESPONSE. MERCHANT AGREES TO USE COMMERCIALLY
REASONABLE EFFORTS TO ADDRESS MATERIAL TECHNICAL PROBLEMS (OVER WHICH
MERCHANT EXERCISES CONTROL) AFFECTING USE BY AOL USERS OF THE MERCHANT SITE
(A "MERCHANT TECHNICAL PROBLEM") PROMPTLY FOLLOWING NOTICE THEREOF. IN THE
EVENT THAT AOL HAS RECEIVED SUBSTANTIAL AOL MEMBER COMPLAINTS REGARDING A
MERCHANT TECHNICAL PROBLEM BASED ON MERCHANT'S FAILURE TO SATISFY A SITE
OPERATING STANDARD SPECIFIED IN THIS AGREEMENT (AND MERCHANT IS UNABLE TO
PROMPTLY RESOLVE SUCH MERCHANT TECHNICAL PROBLEM FOLLOWING NOTICE THEREOF),
AOL WILL HAVE THE RIGHT TO REGULATE THE
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PROMOTIONS IT PROVIDES TO MERCHANT HEREUNDER UNTIL SUCH TIME AS MERCHANT
CORRECTS THE MERCHANT TECHNICAL PROBLEM AT ISSUE).
4. MONITORING. MERCHANT WILL ENSURE THAT THE PERFORMANCE AND
AVAILABILITY OF THE MERCHANT SITE IS MONITORED ON A CONTINUOUS BASIS.
MERCHANT WILL PROVIDE ESCALATION PROCEDURES (E.G., CONTACT NAMES AND
NOTIFICATION MECHANISMS) FOR USE IN CONNECTION WITH TECHNICAL PROBLEMS, AS
DESCRIBED MORE FULLY ABOVE.
5. SECURITY. MERCHANT WILL UTILIZE INTERNET STANDARD ENCRYPTION
TECHNOLOGIES (E.G., SECURE SOCKET LAYER -- SSL) TO PROVIDE A SECURE
ENVIRONMENT FOR CONDUCTING TRANSACTIONS AND/OR TRANSFERRING PRIVATE MEMBER
INFORMATION (E.G., CREDIT CARD NUMBERS, BANKING/FINANCIAL INFORMATION, AND
MEMBER ADDRESS INFORMATION). MERCHANT WILL FACILITATE PERIODIC REVIEWS OF
THE MERCHANT SITE BY AOL IN ORDER TO EVALUATE THE SECURITY RISKS OF SUCH
SITE. MERCHANT WILL FIX ANY SECURITY RISKS OR BREACHES OF SECURITY AS MAY BE
IDENTIFIED BY AOL'S OPERATIONS SECURITY.
6. TECHNICAL PERFORMANCE.
(i) MERCHANT will design the Merchant Site to support the
Windows version of the Microsoft Internet Explorer 3.0 and 4.0 browser, the
Macintosh version of the Microsoft Internet Explorer 3.0, and make
commercially reasonable efforts to support all other AOL browsers listed at:
"xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxXxxxx.xxxx."
(ii) To the extent MERCHANT creates customized pages on the
Merchant Site for AOL Members, MERCHANT will configure the server from which
it serves the site to examine the HTTP User-Agent field in order to identify
the "AOL Member-Agents" listed at
"xxxx://xxxxxxxxx.xxxx.xxx.xxx/Xxxx0Xxxx.xxxx."
(iii) MERCHANT will periodically review the technical
information made available by AOL at
xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxxXxxx.xxxx."
(iv) MERCHANT will design its site to support HTTP 1.0 or
later protocol as defined in RFC 1945 (available at
"http:/xx.xxxxxxxx.xxx/xxx/xxx0000.xxxx") and to adhere to AOL's parameters
for refreshing cached information listed at
xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxxXxxx.xxxx.
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(v) PRIOR TO RELEASING MATERIAL, NEW FUNCTIONALITY OR
FEATURES THROUGH THE MERCHANT SITE ("NEW FUNCTIONALITY") MERCHANT WILL USE
COMMERCIALLY REASONABLE EFFORTS TO EITHER (i) TEST THE NEW FUNCTIONALITY TO
CONFIRM ITS COMPATIBILITY WITH AOL SERVICE CLIENT SOFTWARE OR (ii) PROVIDE
AOL WITH WRITTEN NOTICE OF THE NEW FUNCTIONALITY SO THAT AOL CAN PERFORM
TESTS OF THE NEW FUNCTIONALITY TO CONFIRM ITS COMPATIBILITY WITH THE AOL
SERVICE CLIENT SOFTWARE.
7. AOL INTERNET PRODUCTS PARTNER SUPPORT. AOL WILL PROVIDE MERCHANT
WITH ACCESS TO THE STANDARD ONLINE RESOURCES, STANDARDS AND GUIDELINES
DOCUMENTATION, TECHNICAL PHONE SUPPORT, MONITORING AND AFTER-HOURS ASSISTANCE
THAT AOL MAKES GENERALLY AVAILABLE TO SIMILARLY SITUATED WEB-BASED PARTNERS.
AOL SUPPORT WILL NOT, IN ANY CASE, BE INVOLVED WITH CONTENT CREATION ON
BEHALF OF MERCHANT OR SUPPORT FOR ANY TECHNOLOGIES, DATABASES, SOFTWARE OR
OTHER APPLICATIONS WHICH ARE NOT SUPPORTED BY AOL OR ARE RELATED TO ANY
MERCHANT AREA OTHER THAN THE MERCHANT SITE. SUPPORT TO BE PROVIDED BY AOL IS
CONTINGENT ON MERCHANT PROVIDING TO AOL DEMO ACCOUNT INFORMATION (WHERE
APPLICABLE), A DETAILED DESCRIPTION OF THE MERCHANT SITE'S SOFTWARE, HARDWARE
AND NETWORK ARCHITECTURE AND ACCESS TO THE MERCHANT SITE FOR PURPOSES OF SUCH
PERFORMANCE AND LOAD TESTING AS AOL ELECTS TO CONDUCT. AS DESCRIBED
ELSEWHERE IN THIS AGREEMENT, MERCHANT IS FULLY RESPONSIBLE FOR ALL ASPECTS OF
HOSTING AND ADMINISTRATION OF THE MERCHANT SITE AND MUST ENSURE THAT THE SITE
SATISFIES THE SPECIFIED ACCESS AND PERFORMANCE REQUIREMENTS AS OUTLINED IN
THIS EXHIBIT.
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CONSENT TO BINARY COMPASS ENTERPRISES, INC.
Online Specialty Retailing Inc. ("Merchant") hereby authorizes Binary
Compass Enterprises, Inc. (BCE) to provide to America Online, Inc. (AOL) any
and all reports provided to Merchant by BCE as part of MERCHANT's
participation in AOL's Merchant Certification Program.
Online Specialty Retailing Inc.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxxxx X. Xxxxxx
-------------------------
Title: Chairman
------------------------------
Date: August 4, 1998
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Tax ID/EIN#: 00-0000000
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