Exhibit 10.7
CONFIDENTIAL
SHOPPING CHANNEL PROMOTIONAL AGREEMENT
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This Agreement, dated as of [ * ] (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 Garden Escape, Inc. ("MERCHANT"), a Delaware corporation, with its
principal offices at 000 Xxxx 0xx Xxxxxx, Xxxxxx, Xxxxx 00000 (each a "Party"
and collectively the "Parties").
INTRODUCTION
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AOL owns, operates and distributes the U.S. America Online(R) brand
commercial online service (the "AOL Service"), the U.S. version of its primary
website marketed under the XXX.xxx(R) brand ("XXX.xxx") and the affiliate U.S.
CompuServe(R) 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
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1. MERCHANT PROGRAMMING. MERCHANT will make available through the Merchant
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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.
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2.1 AOL Promotion of MERCHANT. Commencing on a date to be mutually agreed
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upon 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 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.
3. PAYMENTS; REPORTS.
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3.1 Placement Fees. MERCHANT will pay AOL [ * ] for displaying the
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Promotion on the AOL Service, XXX.xxx and the CompuServe Service. The
total amount of [ * ] will be payable in equal [ * ] installments,
with the first such payment to be made upon the Effective Date and
subsequent [ * ] payments to be made on the first day of each
subsequent [ * ]. 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
priori to expiration of the Term. Should AOL fail to display the
Promotion in accordance with the terms of this Agreement due to
MERCHANT's failure to comply with any requirement of this Agreement,
MERCHANT will remain liable for the full amount indicated above.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
3.2 Other In addition to the fees described in Section 3.1, upon
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execution of this Agreement, MERCHANT will pay AOL an additional fee
of [ * ], which shall be in lieu of all payments due to AOL by
MERCHANT for the promotions and advertising placements provided by AOL
pursuant to the following agreements by and between the Parties: the
Marketplace Advertising Agreement dated as of April 1, 1997, as
modified by the First and Second Addenda to such agreement dated as of
September 1, 1997 and October 16, 1997, respectively; the Advertising
Agreement dated as of June 13, 1997; the Insertion Order Agreement
dated September 29, 1997 (underlying the [ * ] invoice previously sent
by AOL to MERCHANT); and the Insertion Order Agreement dated October
13, 1997 (underlying to the [ * ] invoice previously sent by AOL to
MERCHANT).
3.3 Reports. AOL will provide MERCHANT with monthly usage information
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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
include the total number of (i)gross monthly items purchased (ii)
gross monthly orders placed and (iii) gross monthly sales revenues
generated, through the Merchant Site from purchases originating
through the AOL Service, XXX.xxx and the CompuServe Service (as
applicable). AOL may not distribute or disclose such information to
any third party without MERCHANT's prior written consent
4. TERM. Unless otherwise rightfully terminated pursuant to the terms hereto,
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the term of this Agreement will be for a period of [ * ] commencing on the
[ * ] (the "Term").
5. GENERAL TERMS. The general legal terms and conditions set forth on Exhibit
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C attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
AMERICA ONLINE, INC. GARDEN ESCAPE, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
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Print Name: Xxxxxx X. Xxxxxx Print Name: Xxxxxxxx X. Xxxxxxxx
--------------------- ------------------------
Title: Vice President, Marketing Title: CEO and President
& Operations -----------------------------
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Date: 10-7-90 Date: 10-2-98
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Tax ID/EIN#: 00-0000000
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
EXHIBIT A
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Description of Products:
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[ * ]
Product List.
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[ * ]
Product Restrictions. [ * ]
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Impressions:
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[ * ]. For purposes of this Agreement, "Impression" shall mean user exposure to
the department level screen containing the applicable promotion or
advertisement, as such exposure may be reasonably determined and measured by AOL
in accordance with its standard methodologies and protocols.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
Description of Specific Promotion(s):
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Please check the box next to the Promotion(s) that MERCHANT is purchasing.
[_] ANCHOR PROMOTION
MERCHANT will become an "Anchor" in the Home, Kitchen and Garden 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:
[ * ]
Additional Promotion on the AOL Service Shopping Channel:
[ * ]
Eligibility to participate in the following AOL Shopping promotional
programs (the "Program Areas"):
[ * ]
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).
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
EXHIBIT B
Standard Shopping Channel Terms & Conditions
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1. Merchant Site. MERCHANT will work diligently to develop and implement the
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Merchant Site. consisting, in part, of the specific categories of Product(s) set
forth in Exhibit E 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 categories of 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 Products that are directly
related to the categories of MERCHANT Products listed in Exhibit E and Merchant
C&S reasonably related to gardening and outdoor living: provided that AOL's
agreement with respect to any additional Products or Merchant C&S shall not be
unreasonably withheld or delayed. 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 Provider.
2. Management of Merchant Site. MERCHANT will manage, review, delete, edit,
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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 therein: (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 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 Product categories (in addition to
those listed in Exhibit E) 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 reasonable steps to
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conform its promotion and sale of Products through the Merchant Site directly
accessible from the AOL Service to then-existing, mutually agreed upon commerce
technologies. One tool which AOL intends to make available for use by MERCHANT
is 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"). MERCHANT shall have the
right to determine whether or not to incorporate AOL Quick Checkout into the
Merchant Site in its discretion; provided that, MERCHANT acknowledges that: (i)
AOL may subsequently deem incorporation of Quick Checkout as a requirement for a
merchant's qualification as an AOL "Certified Merchant"; and (ii) if, in such
case, MERCHANT opts to forego incorporation of Quick Checkout, MERCHANT would
not be entitled to further designation as an AOL "Certified Merchant." 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 (a) AOL's proprietary form
technology (a "Rainman Area") or (b) HTML-based World Wide Web form (or any
other forms created using a technology other than AOL's 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
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to remove, any content, materials or information (collectively, "Content") in
the Merchant Site (including, without limitation, any features,
EXHIBIT B
Standard Shopping Channel Terms & Conditions
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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
description of Product categories set forth in Exhibit E 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
arty 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 than 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. In the event
that AOL takes action pursuant to this Section 4 of Exhibit B to block, remove
or restrict access to a substantial and material component of Content in the
Merchant Site, then MERCHANT shall have the right to [ * ]. For the purposes of
this Section, a "substantial and material component of Content in the Merchant
Site" shall mean any Product, service, or Content which is directly related to
the Product categories set forth in Exhibit E (or any component of such
Products, services or Content), excluding any Product, service, or Content (or
component thereof) which in AOL's reasonable discretion is deemed obscene,
offensive, defamatory, illegal, incompatible with AOL's technical requirements,
or in contravention of AOL's then standard Terms of Service or advertising
policies.
5. Promotional Placement. MERCHANT acknowledges that the sole obligation of
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AOL is to display the Promotion in the Shopping Channel in accordance with the
terms and conditions 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 MERCRANT. [ * ]. 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 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 MERCHANTs failure to deliver to AOL any materials relating to
the Promotion.
6. Product Offering. Subject to the limitations imposed by AOL with respect
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to MERCHANT's offering of Products hereunder contained elsewhere in this
Agreement, 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 on behalf of MERCHANT through any Additional MERCHANT Channel.
7. Principal and Terms. Subject to the limitations imposed by AOL with
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respect to MERCHANTs offering of Products hereunder contained elsewhere in this
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
EXHIBIT B
Standard Shopping Channel Terms & Conditions
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Agreement, 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 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, Additional 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 (as determined
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by MERCHANT) of special offers through the Merchant Site (e.g., offers enabling
AOL Users to purchase specified Product(s) at a substantial discount from prices
offered by MERCHANT through other sales channels, free gift 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
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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 entails 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-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. Merchant Certification Program. MERCHANT will participate in any generally
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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 or contractors operating the program. MERCHANT agrees
to (i) participate in the BizRate 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's 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 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.
EXHIBIT C
Standard Legal Terms & Conditions
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1. Production and Technical Services. Unless expressly provided for elsewhere
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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,
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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
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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 was the collection or withholding thereof,
including attorneys' fees.
4. Promotional Materials/Press Releases. Each Party will submit to the other
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Party, for its prior written approval, which will not be unreasonably withheld
or delayed, any marketing, advertising, and all other promotional materials
related to the Merchant Site and/or referencing the other Party and/or its trade
names, trademarks, and service marks; provided, however, that a Party shall not
require the approval of the other Parry n connection with use of screen shots of
the Merchant Site (as distributed through the AOL Service, XXX.xxx or CompuServe
Service) for promotional purposes. MERCHANT will not issue any press releases,
promotions or public statements concerning the terms of the Agreement, 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 earlier of the (x) the initial public announcement of the business
relationship between the Parties in accordance with the approval and other
requirements contained herein and (y) the commercial launch of MERCHANT's
Promotions provided for hereunder, 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
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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 by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a Party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, 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 in the Agreement.
6. License. MERCHANT hereby grants AOL a [ * ] license to reproduce, display,
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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 promotional 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 or 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 (the "Merchant Marks") subject to any written
guidelines provided in writing to AOL. MERCHANT will not use, display or modify
AOL's trademarks, tradenames or
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
EXHIBIT C
Standard Legal Terms & Conditions
---------------------------------
servicemarks in any manner, absent AOL's express prior written approval;
provided that, to the extent AOL has provided such approval for a use by
MERCHANT of an AOL trademark, tradename or servicemark (an "AOL Xxxx". and, with
the "Merchant Marks," the "Marks"), MERCHANT will be entitled to use such AOL
Xxxx in strict accordance with (i) the conditions and limitations of the
applicable AOL approval and (ii) any written guidelines providing in writing to
MERCHANT. AOL shall be deemed to have approved use of an AOL Xxxx to be used by
MERCHANT in connection with a "Back to AOL" button to appear on the Merchant
Site, provided AOL subsequently agrees in writing with MERCHANT on the AOL Xxxx
to be used by Merchant and approves in writing the special creative execution
using such AOL Xxxx. In addition, the following terms shall apply to any use by
a Party of the Marks of the other Party to the extent otherwise permitted above:
Such use (i) shall not create a unitary composite xxxx involving a Xxxx of the
other Party without the prior written approval of such other Party; and (ii)
shall include display of symbols and notices clearly and sufficiently indicating
the trademark status and ownership of the other Party's Marks in accordance with
applicable trademark law and practice. Each Party agrees that all use of the
other Party's Marks hereunder will inure to the benefit, and be on behalf, of
the other Party. Each Party acknowledges that its utilization of the other
Party's Marks will not create in it any right, title, or interest in or to such
Marks other than the licenses expressly granted herein. Each Party agrees that
the nature and quality of its products and services supplied in connection with
the other Party's Marks will conform to quality standards set by the other
Party. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks.
7. Confidentiality. Each Party acknowledges that Confidential Information may
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be disclosed to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, at least substantially equivalent to
the steps it takes to protect its own proprietary information, during the term
of this Agreement, and for a period of three years following expiration or
termination of this Agreement, to prevent the 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 loans,
projections, 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.
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(a) Liability. UNDER NO CIRCUMSTANCES, WILL EITHER PARTY BE LIABLE TO THE OTHER
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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,
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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
EXHIBIT C
Standard Legal Terms & Conditions
---------------------------------
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, 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 xxxxx (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 Xxxxx 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 eight 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 will 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 acknowledges 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 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, or 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-mall to be sent through
or into AOL's products or services 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).
(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 [ * ] 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 [ * ] shall mean and refer to an entity
offering one or more of the following, [ * ]
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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 purpose of this Agreement, [ * ]
11. Navigation Tools. The Keyword online search terms made available on the
---------------------
AOL service for use by AOL Members, combining AOL's Keyword online search
modifier with a term or phrase specifically related to MERCHANT (and determined
in accordance with the terms of this Agreement), any Keyword(TM) 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 Keyword(TM) 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 aid interest
MERCHANT holds in MERCHANTs 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 online search terms made available on the AOL
Service for use by AOL Members, combining AOL's Keyword 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 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, 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. [ * ]) and the Deputy
General Counsel (fax no. [ * ]) each at the address of AOL set forth in
the first 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
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
EXHIBIT C
Standard Legal Terms & Conditions
---------------------------------
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. 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, provided that consent will not be required 'in
connection with an 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 MERCHANTs stock or assets). 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 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.
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 crests 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 [ * ].
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
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 "xxxx://xx.xxxxxxxx.xxx/xxx/xxxx000.xxxx") and
to adhere to AOL's parameters for refreshing cached information listed . at
xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxxXxxx.xxxx.
(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
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
EXHIBIT D
Operations
----------
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.
EXHIBIT E
---------
Garden Escape Product Categories (2 Pages)
------------------------------------------
I. LIVE GOODS
-------------
[ * ]
[ * ]
[ * ]
[ * ]
II. HARD GOODS
---------------
[ * ]
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
[ * ]
III. GIFTS & HOLIDAY
--------------------
[ * ]
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
[ * ]
IV. APPAREL
-----------
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
CONSENT TO BINARY COMPASS ENTERPRISES, INC.
-------------------------------------------
GARDEN ESCAPE, 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.
Garden Escape, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Print Name: Xxxxxxxx X. Xxxxxxxx
Title: President and CEO
Date: 10/2/98
--------------------
Tax ID/EIN#: 00-0000000
-------------
