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EXHIBIT 10.11
INTERACTIVE MARKETING AGREEMENT
This Interactive Marketing Agreement (the "Agreement"), is made and
entered into as of March 1, 1998 (the "Effective Date"), by and between America
Online, Inc. ("AOL"), a Delaware corporation, with offices at 00000 XXX Xxx,
Xxxxxx, Xxxxxxxx 00000 and CyberSource Corporation, a/k/a "xxxxxxxx.xxx" (the
"Marketing Partner" or "MP"), a California corporation, with offices at 0000
Xxxxx Xxx, Xxxxx 000, Xxx Xxxx, XX 00000 (each a "Party" and collectively the
"Parties").
INTRODUCTION
AOL and MP each desires to enter into an interactive marketing
relationship whereby AOL will promote MP, the MP Products and the digital
delivery of the MP Products through the interactive site referred to (and
further defined) herein as the Affiliated MP Site. This relationship is further
described below and is subject to the terms and conditions set forth in this
Agreement. Defined terms used herein but not defined in the body of the
Agreement shall be as defined in Exhibit B attached hereto.
TERMS
1. PROMOTION, DISTRIBUTION AND MARKETING.
1.1 AOL PROMOTION OF MP PRODUCTS AND AFFILIATED MP SITE. AOL will
provide MP with the promotions for MP, the MP Products and the
Affiliated MP Site described in Exhibit A attached hereto (the
"Promotions"). Subject to MP's reasonable approval, AOL will
have the right to fulfill its promotional commitments with
respect to any of the foregoing by providing MP with comparable
promotional placements in appropriate alternative areas of the
AOL Network. In addition, if AOL is unable to deliver any
particular Promotion described herein, subject to MP's
reasonable approval, AOL will provide MP, as its sole remedy,
with a comparable promotional placement. AOL reserves the right
to redesign or modify the organization, structure, "look and
feel," navigation and other elements of the AOL services at any
time. In the event such modifications materially and adversely
affect any specific Promotion described herein, subject to MP's
reasonable approval, AOL will provide MP, as its sole remedy,
with a comparable promotional placement.
1.2 IMPRESSIONS. During the Term, AOL will deliver the
following Impressions commitments through the Promotions (or any
comparable promotions as provided in Section 1.1 hereof) during
the following monthly periods (each a "Period"): [*] by the end
of the [*] month of the Term, [*] Impressions from the [*] month
to the end of [*] of the Term, and [*] month to the end of the
[*] month of the Term (which Impressions, together with the
Impressions delivered to MP pursuant to Section 1.3 hereof, as
adjusted from time to time in accordance with Section 1.3, are
hereinafter referred to as the "Impressions Commitment"). With
respect to the Impressions Commitment, AOL will not be obligated
to provide more than such target amounts, individually or in the
aggregate, in any given Period. Any shortfall in Impressions at
the end of a Period will not be deemed a breach of this
Agreement by AOL; instead, such shortfall will be added to the
Impressions target for the subsequent Period. In the event that
as of the Mutual Review Date, AOL shall not have provided a
minimum of [*] through the Promotions and the Additional
Promotions (the "Impressions Minimum"), AOL shall have a
reasonable time, not to exceed [*] within which to deliver the
Impressions Minimum. If AOL shall not have delivered the
Impressions Minimum within such [*] MP shall have the right for
fifteen (15) days to terminate this Agreement upon no less than
fifteen (15) days written notice to AOL, and within thirty (30)
days after such termination, [*] required pursuant to Section
4.1 hereof (the "Guaranteed Payments") [*]
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[*]. If there is a shortfall in Impressions as of the end of the
Initial Term (a "Final Shortfall"), AOL shall have the option to
(i) extend the initial Term (the "Extension Period") until the
earlier of (a) such time as AOL shall have delivered the number
of Impressions which comprise the Final Shortfall (the "Makegood
Impressions") or (b) six (6) months from the end of the Initial
Term; provided that, in the event that AOL shall not have
delivered the Makegood Impressions by the end of the Extension
Period, [*]. During the Extension Period, AOL shall maintain the
exclusivity provisions of Section 3.1 hereof.
1.3 ADDITIONAL IMPRESSIONS. In addition to the Promotions provided
to MP above, AOL shall provide promotions to MP (the "Additional
Promotions") in various categories of (i) the shareware area and
(ii) the web publishing section of the "On the Net" area of the
AOL Service Computing Channel as specified in Exhibit A-1
attached hereto. Additionally, should AOL create a channel or
other area relating to, or focused on, the [*], AOL shall use
commercially reasonable efforts to provide promotion to MP in
such channel or area. The Additional Promotions will deliver
approximately [*] Impressions to MP during the Term of the
Agreement as follows: [*] Impressions by the end of the [*]
month of the Term, [*] Impressions from the [*] month to the [*]
month of the Term, and [*] month to the end of the forty second
(42nd) month of the Term. In the event that MP shall desire to
exchange some of the Additional Promotions for other promotions
on the AOL Service, AOL will work with MP, in good faith, to
provide promotions to MP that are comparable to those provided
on Exhibit A-1.
1.4 CONTENT OF PROMOTIONS. The specific Content to be contained
within the Promotions (including, without limitation,
advertising banners, links, types of products advertised,
graphics, contextual promotions, and editorial Content) (the
"Promo Content") will be determined by MP, subject to (i) AOL's
technical limitations, (ii) the terms of this Agreement and
(iii) AOL's then standard and generally applicable policies
relating to advertising and promotions. AOL will furnish a copy
of the categories of such advertising policies to MP. Further,
AOL will notify MP of a change in such policies and upon the
request of MP, AOL shall furnish the text of any category of
advertising policies requested by MP to MP. MP will
consistently review and modify the Promo Content no less than
two times per week. The Parties will jointly consult with each
other regarding the Promo Content to ensure that it is designed
to maximize performance. Except to the extent expressly
described herein, the specific form, placement, duration and
nature of the Promotions will be determined by AOL in its
reasonable editorial discretion (consistent with the editorial
composition of the applicable screens).
1.5 USE OF PROMOTIONS. MP may sell the promotional spaces provided
herein to third parties in a manner consistent with its ongoing
business practices, provided that any promotional spaces sold to
a third party (i) may only promote the sale of MP Products
(excluding Ancillary Products), and (ii) must promote the sale
of such MP Products (excluding Ancillary Products), through the
Affiliated MP Site. Except to the extent expressly provided in
the preceding sentence, MP may not, nor shall it permit any
third party to, sell or offer to sell any of the promotional
spaces provided herein.
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1.6 MP PROMOTION OF AOL. MP will promote the availability of the
Affiliated MP Site through the AOL Network and will promote AOL as
more fully set forth in Exhibit C attached hereto.
2 AFFILIATED MP SITE.
2.1 CUSTOMIZED SITE. The Affiliated MOP Site shall be an optimized and
"mirrored" version of MP's main web site containing the specific
Content described in Section 2.2 below for distribution hereunder
according to AOL specifications and guidelines to ensure that (i) the
functionally and features within the Affiliated MP Site are optimized
for the client software then in use by a majority of AOL Members (as
determined by AOL and communicated to MP) and (ii) the forms used in
the Affiliated MP Site are designed and populated in a manner
intended to minimize delays when AOL Users attempt to access such
forms. The Affiliated MP Site may include up to four (4) Rainman
screens as mutually determined by AOL and MP. In the event that the
Parties shall create any Rainman screens, AOL shall determine, in its
sole discretion, which of its proprietary publishing tools (each a
"Tool") shall be made available to MP in order to develop and
implement the Rainman screens. Additionally, AOL shall provide MP
with an appropriate level of training with respect to the use of such
Tools, as determined by AOL in its sole discretion. MP shall be
granted a nonexclusive license to use any such Tool, which license
shall be subject to: (a) MP's compliance with all rules and
regulations relating to use of the Tools, as published from time to
time by AOL, (b) AOL's right to withdraw or modify such license at
any time, and (c) MP's express recognition that AOL provides all
Tools on an "as is" basis, without warranties of any kind.
2.1.1 SPECIFIC REQUIREMENTS.
(i) MP shall design the Affiliated MP Site to conform, in
all respects, with the provisions of Exhibit E attached
hereto, and
(ii) AOL reserves the right to review the Affiliated MP
Site to ensure that such site is compatible with AOL's
then-available client and host software and the AOL Network.
MP will take all necessary steps to conform its promotion
and sale of the MP Products through the Affiliated MP Site
to the then-existing technologies identified by AOL which
are optimized for the AOL Network. In consultation with MP,
AOL will be entitled to require reasonable changes to the
Content (including, without limitation, the features or
functionality) within the Affiliated MP Site to the extent
such Content will, in AOL's good faith judgment, adversely
affect any operational aspect of the AOL Network or the
online experience of any AOL User.
2.1.2 CUSTOMIZATION. MP shall customize the Affiliated MP Site
AOL Users as follows:
(i) create a customized home page "welcome mat" for the AOL
audience for each area on the Affiliated MP Site linked to
from the AOL Network on a continuous basis (each a "Welcome
Mat");
(ii) other than with respect to pre-packaged or pre-bundled
software, the packaging of which MP does not control, or
have the ability to control, ensure that AOL Users linking
to the Affiliated MP Site do not receive advertisements,
promotions or links for the products, services or content of
any other Interactive Service or any entity reasonably
construed to be in competition with AOL (such as, but not
limited to, MSN, Netscape, Yahoo); and
(iii) with the exception of advertising links sold and
implemented pursuant to this Agreement, provide continuous
navigational ability for AOL Users to
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return to an agreed-upon point on the AOL Network (for which AOL
shall supply the proper address) from the Affiliated MP Site
(e.g., the point on the AOL Network from which the Affiliated MP
Site is linked), which, at AOL's option, may be satisfied through
the use of a hybrid browser format.
2.2 CONTENT. MP will provide a comprehensive offering of the categories of MP
Products and other Content described in Exhibit D attached hereto, through
the Affiliated MP Site. The Parties acknowledge that Exhibit D shall be
modified from time to time by MP, provided that AOL shall have the right to
review such modifications, and to the extent that such modifications are
inconsistent with the sale of Software Products as provided herein, or
otherwise inconsistent with the provisions of this Agreement, AOL shall
have the right in its reasonable discretion, to reject such modifications.
MP will review, delete, edit, create, update and otherwise manage all
Content available on or through the Affiliated MP Site in accordance with
the terms of this Agreement or any amendments hereto. Except as otherwise
mutually agreed upon by the Parties hereto, the Affiliated MP Site shall
not contain Content (including without limitation, third party content)
relating to anything other than the categories of MP Products listed on
Exhibit D attached hereto.
2.3 PRODUCTION WORK. Except as agreed to in writing by the Parties pursuant to
the "Production Work" section of the Standard Online Commerce Terms &
Conditions attached hereto as Exhibit F, MP will be responsible for all
production work associated with the Affiliated MP Site, including all
related costs and expenses.
2.4 HOSTING; COMMUNICATIONS. MP will be responsible for all communications,
hosting and connectivity costs and expenses associated with the Affiliated
MP Site. In addition, MP will provide all computer, telephone and other
equipment or resources necessary for MP to access the AOL Network. MP and
AOL shall mutually agree upon, and reasonably cooperate in implementing,
the most appropriate means by which MP will connect the MP data center to
AOL's designated data center; provided, however, that in the event the
Parties determine that MP shall utilize a dedicated high speed connection
from the MP data center to AOL's designated data center, then MP shall be
responsible for all costs associated with such high speed connection.
2.5 PRODUCT OFFERING. MP will ensure that the Affiliated MP Site generally
includes all of the MP Products or Content (including, without limitation,
any features, offers, contests, functionality or technology) that are then
made available by or on behalf of MP through any Additional MP Channel and
which are not inconsistent with MP's other contractual obligations;
provided, however, that (i) such inclusion will not be required where it is
commercially or technically impractical to either Party (i.e., inclusion
would cause either Party to incur substantial incremental costs), and (ii)
specific material changes in scope, nature and/or offerings required by
such inclusion will be subject to AOL's review and approval and the terms
of this Agreement.
2.6 [*]
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2.7 [*]
2.8 OPERATING STANDARDS. MP will ensure that the Affiliated MP Site and
the delivery of the MP Products comply at all times with the standards
set forth in Exhibit E. To the extent site standards are not
established in Exhibit E with respect to any aspect or portion of the
Affiliated MP Site (or the MP Products or other Content contained
therein), MP will provide such aspect or portion at a level of
accuracy, quality, completeness, and timeliness which meets or exceeds
prevailing standards in the computer software industry. If at any time
during the Term MP fails to satisfy any requirement [*] of Exhibit
E AOL shall have the right (in addition to any other remedies
available to AOL hereunder) to reduce or cease placement of the
Promotions until such time as MP corrects its non-compliance (the
"Non-Compliance Period"), and if as a direct result of such
non-compliance AOL is unable to provide the Impressions required
hereunder during the Non-Compliance Period, AOL shall have the right
to reduce the Impressions Commitment, on a pro-rata basis, during the
Non-Compliance Period (e.g., if the Non-Compliance Period extends for
a period of two months, then AOL shall reduce the Impressions
Commitment by an amount equal to the product of two (2) times the
Impressions Commitment divided by forty two(42)).
2.9 NETWORK RESTRICTION. The Parties hereby agree that AOL shall have the
right, in its sole discretion, to reduce or cease placement of the
Promotions, or restrict access from the AOL Network to the Affiliated
MP Site (or any combination of the foregoing) (the "Network
Restriction Right") in the event that, as a result of the sale of the
MP Products in the manner contemplated hereby, and through no fault of
MP, the functional integrity of the AOL Network is compromised or the
ability of the AOL Network to adequately serve AOL Users is adversely
affected. If at any time during the Term AOL shall exercise the
Network Restriction Right for an aggregate of one hundred and twenty
(120) hours in any thirty (30) day period, then MP shall have the
right to request that AOL and MP monitor the Promotions and sales of
the MP Products through the Affiliated MP Site for a period of time
not to exceed forty five (45) days. If within such forty five (45) day
period, AOL and MP reasonably determine that the exercise of the
Network Restriction Right had a Material Adverse Effect on the sale of
the MP Products, the Parties shall renegotiate, in good faith, the
applicable terms of this Agreement for fifteen (15) days. If the
Parties cannot renegotiate the terms of the Agreement within such time
period, MP shall have the right for a period of fifteen (15) days to
terminate the Agreement as provided in Section 6.3 hereof, and within
thirty (30) days after such termination, MP or AOL, as the case may
be, [*]
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2.10 ADVERTISING SALES. Subject to the terms hereof, MP shall have the
right to sell promotions, advertisements, links, pointers or
similar services or rights through the Affiliated MP Site
("Advertisements"). The specific advertising inventory within the
Affiliated MP Site shall be determined by MP. [*]
3. AOL EXCLUSIVITY OBLIGATIONS.
3.1 EXCLUSIVE PRODUCTS. Provided that MP is in compliance with all
material terms of this Agreement, during the Initial Term, MP
shall be the exclusive, third party, re-seller of Software
Products delivered to an end user of such Software Products via
an electronic, digital download format (the "Exclusive Software
Products"), promoted by AOL in the specific manner and on the
specific screens of the AOL Service and XXX.xxx as provided in
Exhibit A attached hereto. Additionally, MP shall be a
non-exclusive, third party, re-seller of Software Products
delivered to an end user of such Software Products in a
pre-packaged box or other physical container (the "Semi-Exclusive
Software Products") as promoted by AOL in the specific manner and
on the specific screens of the AOL Service and XXX.xxx provided
for in Exhibit A. With respect to Exhibit A, on screens
designated as "Comprehensive Exclusive," MP shall be the
exclusive, third party, reseller of the Exclusive and
Semi-Exclusive Software Products, and on screens designated as
"Semi-Exclusive", MP shall be the exclusive, third party,
reseller of the Exclusive Software Products and a non-exclusive,
third party, reseller of the Semi-Exclusive Software Products;
provided that no more than one (1) other retailer of the
Semi-Exclusive Products shall appear on such screens (the
"Excluded Retailer"). During the Initial Term, except for the
Excluded Retailer on the Semi-Exclusive screens, AOL shall not
(i) promote any third party Software Products on the screens of
the AOL Service or XXX.xxx on which MP has an exclusivity as
provided herein, or (ii) provide any promotions on such screens
which link to the first screen (which shall include any flash
screen or temporary screen/display presented to an AOL User upon
clicking on a Promotion) of any third party web site on which any
Software Product titles are promoted or sold, or on which
Software Products are predominantly promoted. With respect to any
third party, to the extent (i) the tradename or trademark of such
third party shall contain the words "download", "downloadable",
"download software" or "downloadable software", or (ii) the
marketing materials of such third party shall encourage the
purchase of the
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Exclusive or Semi-Exclusive Software Products, AOL shall not promote or
advertise such name or marketing material of such third party on any
screens of the AOL Service or XXX.xxx on which MP has an exclusivity as
provided herein. Notwithstanding the foregoing, to the extent that AOL
shall have the right to promote the Excluded Retailer, the foregoing
restrictions shall not apply to the promotion of Semi-Exclusive Software
Products by the Excluded Retailer.
3.2 [*]
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3.3 AOL STORE RESTRICTIONS. Subject to the provisions of this Agreement,
during the Initial Term and any Renewal Term during which AOL maintains
the exclusivity provisions hereof, (i) the AOL Store shall not
advertise, promote or sell the Exclusive Software Products on the AOL
Service or XXX.xxx, and (ii) MP shall have the right during each quarter
of the Initial Term to request that, other than with respect to Pop-Ups
as provided in Section 3.2(iii) above, the AOL Store shall not
advertise or promote (through banners, buttons or other types of
similar permanent placements) five (5) specific Software Product
titles offered by MP at such time and identified in writing by MP (each
a "Restricted Product"), subject at all times to the following:
(a) within five (5) days after the Effective Date, MP shall
submit a list of Restricted Products to AOL for the first
quarter of the Agreement; provided that, AOL has the right to
reject any Restricted Product on such list to the extent that
AOL is unable to remove such Restricted Product from the AOL
Store due to any existing binding arrangements of AOL. MP shall
resubmit additional Restricted Products to AOL until the Parties
have agreed upon five (5) Restricted Products;
(b) prior to changing any Restricted Product, MP shall provide
AOL with forty five (45) days written notice which shall contain
the name and SKU of each Restricted Product MP wishes to add;
(c) AOL shall have the right to promote the Restricted Products
on the AOL Service or XXX.xxx so long as such promotions
(except with respect to Pop-Ups) link solely to the Affiliated
MP Site;
(d) in the event that AOL shall advertise Software Products via
Non-Modal Pop-Ups, AOL shall not, to the extent technologically
feasible, display such Non-Modal Pop-Ups in any of the
following areas: (1) any screens in the Computing Channel and
Games Channel of the AOL Service on which MP has an exclusivity
as provided herein, (2) any screens on the Personal Finance Web
Channel of XXX.xxx on which MP has an exclusivity as provided
herein and (3) any screens of the Affiliated MP Site accessed
by any AOL User; and
(e) in addition to the payments required pursuant to Section 4
hereof, MP shall pay to AOL an amount equal to fifteen percent
(15%) of Gross Transaction Margins derived from the sale of the
Restricted Products through the Affiliated MP Site (the
"Restricted Product Revenue Share"); provided that, from and
after such time as MP shall have reached the Threshold, MP shall
no longer be required to pay to AOL the Restricted Product
Revenue Share.
3.4 [*]
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3.5 TRANSACTION PROCESSING. To the extent that AOL or any third
party other than MP sells Software Products that are digitally
delivered in an electronic download format on the AOL Service
or XXX.xxx, and provided that MP offers transaction processing
services that offer terms, rates and quality that are equal to,
or greater than, the top five (5) transaction processing
services in the software electronic download industry, AOL shall
consider the use of MP's transaction processing services related
to the sale of such Software Products on the AOL Service or
XXX.xxx.
3.6 AOL EXCLUSIVITIES. Notwithstanding the provisions of Section 3.1
above, MP shall not distribute any Exclusive or Semi-Exclusive
Products which are identical, or similar in nature to, any
products sold online by any existing or future partners of AOL
that are not Software Products, including, but not limited to,
books or other text based products and music compact disks
designed primarily for the retail sale of music or other similar
musical or audio based products; provided, however, that MP may
distribute categories of products that are packaged with,
ancillary to, or related to an Exclusive or Semi-Exclusive
Product and which constitute an integral part of such Exclusive
or Semi-Exclusive Product either by way of integration or by way
of instructions (the "Ancillary Products") as listed on Exhibit
D-1 attached hereto; and provided further that such Ancillary
Products shall be provided by MP at least two clicks away from
any screen on the AOL Service or XXX.xxx (including a Welcome
Mat) linking to the Affiliated MP Site.
3.7 PRODUCT OFFER RIGHT. If AOL shall determine that the sale of
certain Software Products is essential to a good AOL User
experience in, or necessary to the continued viability of,
any area of the AOL Service or XXX.xxx in which MP has an
exclusivity as provided herein, and provided that MP shall not
offer such Software Products for sale through the MP Affiliated
Site, MP shall have thirty (30) days after notice from AOL to
provide such Software Products, and if within such thirty (30)
day period MP is unable to provide such Software Products, AOL
shall have the right to provide such Software Products on the
AOL SERVICE OR XXX.xxx.
3.8 PERSONAL FINANCE CHANNEL RESTRICTION. In the event that MP shall
promote any third party in any of the promotional spaces
provided to MP in the Personal Finance Channel of the AOL
Service as set forth in Exhibit A, MP shall provide to AOL's
exclusive tax partner the opportunity to receive promotional
placements in the Personal Finance Channel on terms and
conditions (including, without limitation, scope, purpose,
amount, prominence or regularity) that are not less favorable
than the terms and conditions provided to such other third
party; provided that, in no event shall AOL's exclusive tax
partner be required to make any payments to MP in connection
with such promotional placements. To the extent that MP shall
comply with the foregoing requirements, and provided that AOL's
exclusive tax partner takes advantage of such promotions, MP
shall be entitled to deduct the value of the promotional spaces
provided to AOL's exclusive tax partner from the payments due to
AOL pursuant to Section 4.3 hereof.
4. PAYMENTS.
4.1 GUARANTEED PAYMENTS. Subject to the terms of this Agreement, MP
will pay to AOL a guaranteed payment of Twenty One Million
Dollars (US $21,000,000) as follows:
(i) [*] upon execution of this Agreement:
(ii) [*]
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(iii) [*] upon the occurrence of the earlier of [*] the
earlier of
(iv) [*] upon the occurrence of the one (1) year anniversary
of this Agreement; and
(v) [*] upon the occurrence of the two (2) year anniversary
of this Agreement.
4.2 [*]
4.3 [*]
4.4 ALTERNATIVE REVENUE STREAMS. In the event MP or any of its
affiliates (a) receives or desires to receive, directly or
indirectly, any compensation in connection with the Affiliated
MP Site other than Transaction Revenues or Advertising Revenues
(an "Alternative Revenue Stream"), or (b) desires to materially
alter or change its current business model (e.g., a change to an
Auction Format, Retail Club or the rental of Software Products)
(an "Alternative Business Model") MP will promptly inform AOL in
writing, and the Parties will negotiate in good faith regarding
whether MP will be allowed to (i) market products producing such
Alternative Revenue Stream through the Affiliated MP Site, or
(ii) create an Alternative Business Model and if so, the
equitable portion of revenues from such Alternative Revenue
Stream or Alternative Business Model (if applicable) that will
be shared with AOL (in no event less than the percentage of
Gross Transaction Margins to be paid to AOL pursuant to this
Section 4). In the event the Parties cannot in good faith reach
agreement regarding such Alternative Revenue Stream or
Alternative Business Model, MP shall refrain from implementing
the Alternative Revenue Stream or the Alternative Business
Model.
4.5 WIRED PAYMENTS; LATE PAYMENTS. All payments required under this
Section 4 will be paid in immediately available, non-refundable
funds wired to AOL's account. If (i) the amounts owed pursuant
to Section 4.1 are not paid within five (5) business days of
the date when such amounts are due and payable, or (ii) the
amounts owed pursuant to Sections 4.2 and 4.3 are not paid
within fifteen (15) days of the date when such amounts are due
and payable, then in addition to its other remedies
hereunder, AOL shall have the right to immediately terminate
this Agreement. Notwithstanding the foregoing, after such time
as AOL shall have received the payments required pursuant to
Section 4.1(a) (b) and (c) hereof, if the remaining amounts owed
pursuant to Section 4.1, 4.2 or 4.3 are not paid within five
(5) business days or fifteen (15) days, as the case may be, of
the date when such amounts are due and payable, AOL shall
notify MP and MP shall have one additional five (5) day
period from the date of notice within which to make such
payment. If after such time payment shall not have been
received by AOL, then in addition to its other remedies
hereunder, AOL shall have the right to immediately terminate
this Agreement. All amounts owed hereunder not paid when due
and payable will bear interest from the date such amounts are
due and payable at the prime rate in effect at such time.
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4.6 AUDITING RIGHTS. MP will maintain complete, clear and accurate
records of all expenses, revenues and fees in connection with
the performance of this Agreement. For the sole purpose of
ensuring compliance with this Agreement, AOL will have the
right, at its expense, to direct an independent certified
public accounting firm to execute a non-disclosure agreement
with MP and to conduct a reasonable and necessary inspection of
portions of the books and records of MP which are relevant to
MP's performance pursuant to this Agreement. Any such audit may
be conducted after twenty (20) business days prior written
notice.
4.7 TAXES. MP 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,
arising from the license or sale of MP Products hereunder,
including any penalties and interest, as well as any costs
associated with the collection or withholding thereof, including
attorneys' fees.
4.8 REPORTS. MP will provide AOL with a monthly report in a
reasonable AOL-designated format agreed to by AOL and MP,
detailing the following activity in such month (and any other
information mutually agreed upon by the Parties or reasonably
required for measuring revenue activity by MP through the
Affiliated MP Site): summary sales information by day (date,
number of MP Products, number of orders, total Transaction
Revenues); and (ii) detailed sales information (order date/time
stamp (if technically feasible), purchaser name and screenname,
SKU or MP Product description) (the information in clauses (i)
and (ii) are collectively referred to herein as "Sales
Reports"). AOL will be entitled to use the Sales Reports in the
normal course of its business operations, subject to the
following: AOL will not disclose individual AOL Purchaser
Information to any third party. AOL will restrict its use of
the Sales Reports to (i) internal programming and advertising
rotation purposes and (ii) informational disclosures as part of
broader aggregate data regarding AOL Members. AOL will not use
the lists of user names of AOL Purchasers provided by MP to
AOL pursuant to this Section 4.8 to send targeted solicitations
marketing Software Products to such user names, provided that
the foregoing will not restrict AOL's ability to market any
products or services to its subscribers or any persons or
entities as part of more general marketing efforts which do not
exclusively make use of the screenname lists provided to AOL by
MP hereunder. More generally, each payment to be made by MP
pursuant to this Section 4 will be accompanied by a report
containing information which supports the payment, including
information identifying (i) gross Transaction Revenues and all
items deducted or excluded from gross Transaction Revenues to
produce Gross Transaction Margins, including, without
limitation, chargebacks and credits for returned or canceled
goods or services (and, where possible, an explanation of the
type of reason therefor, e.g., bad credit card information,
poor customer service, etc.) and (ii) any applicable
Advertising Revenues. AOL shall provide MP with standard
monthly usage information related to the Promotions which are
similar in substance and form to the reports provided by AOL to
other interactive marketing partners similar to MP.
5. WARRANTS [INTENTIONALLY OMITTED]
6. TERM; RENEWAL; TERMINATION.
6.1 TERM. Unless earlier terminated or extended as set forth
herein, the initial term of this Agreement will be forty two
(42) months from the Effective Date (the "Initial Term").
6.2 RENEWAL. Upon conclusion of the Initial Term, AOL shall have
the right to renew the Agreement for two successive one-year
renewal terms (each a "Renewal Term" and together with the
initial term, the "Term") by providing MP with notice of AOL'S
intention to renew the Agreement for a subsequent Renewal Term
no later than thirty (30) days prior to the commencement of
such Renewal Term. During any such Renewal Term: (i)
11
12
[*]
6.3 TERMINATION FOR BREACH. Except as expressly provided elsewhere
in this Agreement, either Party may terminate this Agreement at
any time in the event of a material breach of the Agreement by
the other Party which remains uncured after thirty (30) days
written notice thereof to the other Party (or such shorter
period as may be specified elsewhere in this Agreement);
provided that, except as expressly set forth in Section 4.5
above, AOL will not be required to provide notice to MP in
connection with MP's failure to make any payment to AOL required
hereunder. Notwithstanding the foregoing, in the event of a
material breach of a provision that expressly requires action
to be completed within an express period shorter than thirty
(30) days, either Party may terminate this Agreement if the
breach remains uncured after written notice thereof to the
other Party.
6.4 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) ceases ongoing
operations, (ii) becomes or is declared insolvent or bankrupt,
(iii) is the subject of any proceeding related to its
liquidation or insolvency (whether voluntary or involuntary)
which is not dismissed within ninety (90) calendar days or (iv)
makes an assignment for the benefit of creditors.
6.5 TERMINATION ON CHANGE OF CONTROL. In the event of a Change of
Control of MP resulting in control of MP by an Interactive
Service other than AOL, AOL may terminate this Agreement by
providing to MP thirty (30) days prior to written notice of
such intent to terminate.
6.6 [Intentionally Omitted]
6.7 EXPIRATION OF TERM. Upon expiration of the Term, AOL shall have
the right for a period not to exceed two (2) years to (a)
promote one or more "pointers" or links from the AOL Network to
the Affiliated MP Site or, at MP's option, to an MP Interactive
Site selling products substantially similar to the MP products,
and (b) use MP's tradenames, trademarks and service marks in
connection with such promotion. [*]
6.8 [*]
12
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
13
Agreement. In the event that the Parties cannot renegotiate the
applicable terms of this Agreement within thirty (30) days
following the end of the Monitoring Period, MP shall have the
right to terminate the Agreement upon no less than thirty (30)
days written notice to AOL, and within thirty (30) days of such
termination, MP or AOL, as the case may be, shall pay or
refund, respectively, the other, an amount equal to the
difference between (i) the Guaranteed Payments made to AOL to
date and (ii) an amount determined pursuant to the following
formula:
X = Y x (A/B)
Where X = Value delivered to date (based on impressions)
Y = Impressions delivered as of the termination date
less a pro-rata share of Impressions delivered
during the Monitoring Period (determined by reducing
the number of Impressions delivered during the
Monitoring Period in proportion to the reduction in
sales which occurred as a result of the Business
Model Change)
A = the Guaranteed Payments
B = the Impressions Commitment
provided that, if such amount is a positive number only AOL
shall have a payment obligation, and if such amount is a
negative number only MP shall have a payment obligation.
7. MANAGEMENT COMMITTEE/ARBITRATION. If the Parties are unable to resolve
any dispute, controversy or claim arising under this Agreement
(excluding any disputes relating to intellectual property rights or
confidentiality) (each a "Dispute"), such Dispute shall be submitted to
the Management Committee for resolution. If the Management Committee is
unable to resolve the Dispute within ten (10) business days after
submission to them, the Dispute shall be solely and finally settled by
arbitration in Washington, D.C. under the auspices of the American
Arbitration Association; provided that the Federal Rules of Evidence
shall apply in toto to any such Dispute and, subject to the arbitrators'
discretion to limit the time for and scope of discovery, the Federal
Rules of Civil Procedure shall apply with respect to discovery; and
provided further that, consistent with the parties' desire to avoid
delays and unnecessary expense, any Dispute arising from any provision
of the Agreement which expressly or implicitly provides for the parties
to reach mutual agreement as to certain terms therein shall not be
submitted to arbitration but shall be resolved in good faith by the
Management Committee. The arbitrator may enter a default decision
against any Party who fails to participate in the arbitration
proceedings. For purposes herein, the "Management Committee" shall mean
a committee made up of two (2) senior executives from each of the
Parties for the purpose resolving Disputes under this Section and
generally overseeing the relationship between the Parties contemplated
by this Agreement. Notwithstanding the foregoing, during the resolution
of any Dispute, the Parties hereto shall continue to make all payments
required hereunder.
13
14
8. STANDARD TERMS. The Standard Online Commerce Terms & Conditions set
forth in Exhibit F attached hereto and Standard Legal Terms &
Conditions set forth on Exhibit G attached hereto are each 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. CYBERSOURCE CORPORATION
By: /s/ XXXXX X. XXXXXXX By:
------------------------------ ------------------------------
Xxxxx X. Xxxxxxx, Xxxxxxx X. XxXxxxxxx,
Senior Vice President, President and CEO
AOL Networks
14
15
8. STANDARD TERMS. The Standard Online Commerce Terms & Conditions set
forth in Exhibit F attached hereto and Standard Legal Terms &
Conditions set forth on Exhibit G attached hereto are each 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. CYBERSOURCE CORPORATION
By: By: /s/ XXXXXXX X. XxXXXXXXX
------------------------------ ------------------------------
Xxxxx X. Xxxxxxx, Xxxxxxx X. XxXxxxxxx,
Senior Vice President, President and CEO
AOL Networks
14
16
EXHIBIT A
PLACEMENT/PROMOTION PLAN
Placement
----------------------------------------------------------------------------------------------------------
# SCREEN ITEM FREQUENCY
----------------------------------------------------------------------------------------------------------
Computing Channel Placement (Channel currently undergoing redesign)
----------------------------------------------------------------------------------------------------------
1 Channel Main Feature Product Promotion [*] [*]
----------------------------------------------------------------------------------------------------------
2 Download Software Integrated Promotion [*] [*]
----------------------------------------------------------------------------------------------------------
2 Download Software Feature Product Promotion [*] [*]
----------------------------------------------------------------------------------------------------------
3 Daily Download Integrated Promotion [*] [*]
----------------------------------------------------------------------------------------------------------
4 Companies Listing and rotational promotion [*] [*]
----------------------------------------------------------------------------------------------------------
5 Superstore Main 1 Promotion Box (rotating) + co-op box [*] [*]
----------------------------------------------------------------------------------------------------------
6 Superstore Main Product Search functionality - non - [*] [*]
branded
----------------------------------------------------------------------------------------------------------
7 Superstore Main Software Button [*] [*]
----------------------------------------------------------------------------------------------------------
8 Superstore Software Integration in Software Categories List [*] [*]
Category Box
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
9 Superstore Software Feature Product Promotion [*] [*]
Category
----------------------------------------------------------------------------------------------------------
10 Computing Channel Promotion [*] [*]
Software Search
----------------------------------------------------------------------------------------------------------
11 PC File Search Button Integration [*] [*]
Referee Screen
----------------------------------------------------------------------------------------------------------
12 Mac File Search Button Integration [*] [*]
Referee Screen
----------------------------------------------------------------------------------------------------------
13 Weekly Byte Newsletter Article Links [*] [*]
----------------------------------------------------------------------------------------------------------
14 Virus Information Integration [*] [*]
Center
----------------------------------------------------------------------------------------------------------
SHOPPING CHANNEL PLACEMENT
----------------------------------------------------------------------------------------------------------
15 Computing: Software Anchor + promotions [*] [*]
Department Main
----------------------------------------------------------------------------------------------------------
GAMES CHANNEL PLACEMENT
----------------------------------------------------------------------------------------------------------
16 Games Store Integration [*] [*]
----------------------------------------------------------------------------------------------------------
15
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17
# AREA ITEM FREQUENCY
---- ---- ---------
AOL NETFIND PLACEMENT
----------------------------------------------------------------------------------------------------------
17 Search Results Full Banner; Computing Package Keywords [*] [*]
----------------------------------------------------------------------------------------------------------
18 Web Site Reviews Full Banner; Computing Package Directory [*] [*]
----------------------------------------------------------------------------------------------------------
NETCHANNELS PLACEMENT
----------------------------------------------------------------------------------------------------------
19 Computing Web Integration [*] [*]
Channel
----------------------------------------------------------------------------------------------------------
20 Personal Finance Web Financial Mgmt Software Store, textual [*] [*]
Channel integration and hyperlink
----------------------------------------------------------------------------------------------------------
21 Entertainment Web Games/Entertainment Software Store, [*] [*]
Channel textual integration
----------------------------------------------------------------------------------------------------------
22 AOL Netfind Netfind Home Page Button or similar [*] [*]
Homepage promotions (e.g., AOL Instant Messenger,
XXX.xxx Home Page, Communities, General
Rotation)
----------------------------------------------------------------------------------------------------------
AOL Service Personal Finance Channel
----------------------------------------------------------------------------------------------------------
23 Personal Finance Integration into Tax Center Permanent [*]
Channel Tax Planning
----------------------------------------------------------------------------------------------------------
For the purposes of this Exhibit A:
"Anchor" shall mean a prominent permanent placement.
"Permanent" shall mean a placement which is always present on a screen.
"Rotating" shall mean a non-Permanent presence on a screen.
Keywords
The Affiliated MP Site will be accessible from the AOL Network through the use
of the keywords "softwarenet" "xxxxxxxx.xxx" (or such other keyword as AOL may
assign to MP in the case of a name change; provided, however, that such keyword
(i) shall at all times be subject to availability and (ii) shall be a
"non-generic" trademark of MP).
16
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
18
EXHIBIT A-1
ADDITIONAL PROMOTIONS
------------------------------------------------
# SCREEN
------------------------------------------------
------------------------------------------------
1 Animation and Video [*]
Main
------------------------------------------------
2 Business and Finance [*]
Main
------------------------------------------------
3 Desktop Publishing [*]
Main
-------------------------------------------------
4 Development and [*]
Programming Main
-------------------------------------------------
5 Education and [*]
Reference Main
-------------------------------------------------
6 Fun and Games Main [*]
-------------------------------------------------
7 Graphics Main [*]
-------------------------------------------------
8 Home and Hobbies [*]
Main
-------------------------------------------------
9 Internet Main [*]
-------------------------------------------------
10 Music and Sound Main [*]
-------------------------------------------------
11 Network and Telecom [*]
Main
-------------------------------------------------
12 Utilities and Tools Main [*]
-------------------------------------------------
17
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19
EXHIBIT B
Definitions
The following definitions will apply to this Agreement:
ADDITIONAL MP CHANNEL. Any other distribution channel (e.g., an Interactive
Service other than AOL) through which MP makes available an offering comparable
in nature to the Affiliated MP Site.
ADVERTISING REVENUES. The combination of AOL Advertising Revenues and Internet
Advertising Revenues:
AOL ADVERTISING REVENUES. (a) Aggregate amounts collected plus the fair
market value of any other compensation received (such as barter
advertising) by MP, or its agents, as the case may be, arising from the
license or sale of advertisements, promotions, links or sponsorships
("Advertisements") that appear within any pages of the Affiliated MP
Site or on any screens or forms preceding, framing or otherwise
directly associated with the Affiliated MP Site, less applicable
Advertising Sales Commissions and (b) a pro-rata portion of any co-op
marketing fees, or any similar fees collected by MP or its agents from
vendors ("Co-op Marketing Fees") for (i) "shelf space" in any MP
Interactive Site linked to from the AOL Network or (ii) direct
marketing efforts directed at any AOL Member or AOL User, as determined
by multiplying the amount of Co-op Marketing Fees collected by MP in
any given period of time by the quotient of (i) any Co-op Marketing
Fees derived from any Advertisements or marketing materials viewed by
AOL Users for such period of time divided by (ii) total Co-op Marketing
Fees derived from any Advertisements or marketing materials viewed by
all users for such period of time.
INTERNET ADVERTISING REVENUES. For each Advertisement on a page of the
Affiliated MP site or any MP Interactive Site which is not exclusively
available to AOL Users, the product of: (a) the amount collected plus
the fair market value of any other compensation received (such as
barter advertising) by MP or its agents arising from the license or
sale of such Advertisement attributable to a given period of time and
(b) the quotient of (i) Impressions on the page containing such
Advertisement by AOL Users for such period of time divided by (ii)
total Impressions on the page containing such Advertisement by all
users for such period of time (the "Internet Advertising Quotient")(or
such other percentage or formula as is mutually agreed upon in writing
by the Parties). MP will be responsible for calculating the Internet
Advertising Quotient related to Internet Advertising Revenues. In the
event that MP fails to perform such calculations, AOL has the right to
require MP to perform such calculations.
ADVERTISING SALES COMMISSION. (i) Actual amounts paid as commission to third
party agencies in connection with the sale of the Advertisement or [*] in
the event the Party has sold the Advertisement directly and will not be
deducting any third party agency commissions.
AFFILIATED MP SITE. The specific area to be promoted and distributed by AOL
hereunder through which MP can market and complete transactions regarding the
MP Products.
AOL INTERACTIVE SITE. Any Interactive Site which is managed, maintained, owned
or controlled by AOL or its agents.
AOL LOOK AND FEEL. The elements of graphics, design, organization,
presentation, layout, user interface, navigation and stylistic convention
(including the digital implementations thereof) which are generally associated
with Interactive Sites within the AOL Service or XXX.xxx.
AOL MEMBER. Any authorized user of the AOL Network, including any sub-accounts
using the AOL Network under an authorized master account.
18
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
20
AOL NETWORK. (i) The AOL Service, (ii) XXX.xxx and (iii) any other product or
service owned, operated, distributed or authorized to be distributed by or
through AOL or its affiliates worldwide (and including those properties
excluded from the definitions of the AOL Service or XXX.xxx).
AOL PURCHASER. (i) Any person or entity who enters the Affiliated MP Site from
the AOL Service or XXX.xxx including, without limitation, from any third party
area therein (to the extent entry from such third party area is traceable
through both Parties' commercially reasonable efforts), and generates
Transaction Revenues (regardless of whether such person or entity provides an
e-mail address during registration or entrance to the Affiliated MP Site which
includes a domain other than an "XXX.xxx" domain); and (ii) any other person or
entity who, when purchasing a product, good or service through an MP
Interactive Site, provides an XXX.xxx domain name as part of such person or
entity's e-mail address; provided that any person or entity who has previously
satisfied the definition of AOL Purchaser will remain an AOL Purchaser, and any
subsequent purchases by such person or entity will also give rise to
Transaction Revenues hereunder (and will not be conditioned on the person or
entity's satisfaction of clauses (i) or (ii) above) and (b) with respect to
clause (ii) above, an AOL Purchaser shall not mean any person or entity that is
listed on a disk to be provided by MP to AOL within forty five (45) days of the
Effective Date.
AOL SERVICE. The narrow-band U.S. version of the America Online(R) brand
service, specifically excluding (a) XXX.xxx or any other AOL Interactive Site,
(b) the international versions of the AOL Service (e.g., AOL Japan), (c)
"Driveway," "AOL NetFind(TM)," "AOL Instant Messenger(TM)" or any similar
product or service offered by or through the U.S. version of the America
Online(R) brand service, (d) any programming or content area offered by or
through the U.S. version of the America Online(R) brand service over which AOL
does not exercise complete or substantially complete operational control (e.g.,
Content areas owned, maintained or controlled by AOL Studios or other AOL
affiliates, "Digital Cities(TM)," "WorldPlay(TM)," "Entertainment Asylum(TM),"
the "Hub(TM)," or any similar "sub-service," third-party Content areas, and any
Interactive Site containing "xxxxxxx.xxx.xxx" as part of its URL), (e) any
yellow pages, white pages, classifieds or other search, directory, or review
services or Content offered by or through the U.S. version of the America
Online(R) brand service, (f) any version of the U.S. version of the America
Online(R) brand service distributed through any broadband distribution platform
or through any platform or device other than a desktop personal computer, (g)
any co-branded or private label branded version of the America Online(R) brand
service and (h) any property, feature, product or service which AOL or its
affiliates may acquire from a third party subsequent to the Effective Date.
[*]
AOL USER. Any user of the AOL Service or XXX.xxx.
XXX.XXX. AOL's Internet-based Interactive Site to which AOL Members are pointed
as the default access point from the AOL Service to the principal AOL controlled
aggregation of content and navigation services outside the AOL Service,
specifically excluding (a) the AOL Service, (b) any international versions of
XXX.xxx, (c) "Driveway," "AOL NetFind(TM)," "AOL Instant Messenger(TM)" or
any similar product or service offered by or through such site or any other AOL
Interactive Site, (d) any programming or content area offered by or through such
site or any other AOL Interactive Site over which AOL does not exercise complete
or substantially complete operational control (e.g., Content areas owned,
maintained or controlled by AOL Studios or other AOL affiliates, "Digital
Cities(TM)," "WorldPlay(TM)," "Entertainment Asylum(TM)," the "Hub(TM)," or any
similar "sub-service," third-party Content areas, and any Interactive Site
containing "xxxxxxx.xxx.xxx" as part of its URL), (e) any yellow pages, white
pages, classifieds or other search or directory services offered by or through
such site or any other AOL Interactive Site, (f) any version of such site
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer, (g) any co-branded or private
label branded version of such site, and (h) any property, feature, product or
service which AOL or its affiliates may acquire from a third party subsequent to
the Effective Date.
19
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21
AUCTION FORMAT. A format whereby products are sold through the bidding by one
or more individuals or entities on a product or group of products, and the
price of such product or group of products is determined by the price paid by
the highest bidder.
CHANGE OF CONTROL. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets
of a party; or (b) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then
outstanding shares of common stock of such party; or (ii) the combined voting
power of the then outstanding voting securities of such party entitled to vote
generally in the election of directors.
CONFIDENTIAL INFORMATION. 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 Members, AOL
Users, AOL Purchasers and MP customers, technical processes and formulas,
source codes, product designs, sales, cost and other unpublished financial
information, product and business plans, 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, or (d) lawfully
obtained from any third party.
CONTENT. Information, materials, features, products, advertisements,
promotions, links, pointers and software, including any modifications,
upgrades, updates, enhancements and related documentation.
FINANCING EVENT. Either (a) the receipt of equity funding of at least Seven
Million Dollars (US $7,000,000) by MP from a private investor or group of
investors or (b) the receipt of equity funding by MP as a result of the
initial public offering of securities of MP pursuant to an effective
registration statement under the Securities Act of 1933, as amended.
GROSS MARGINS. The sum total of Gross Transaction Margins and Advertising
Revenues derived pursuant to this Agreement.
GROSS TRANSACTION MARGINS. Aggregate amounts paid by AOL Purchasers in
connection with the sale, licensing, distribution or provision of any MP
Products, but excluding, in each case, the price paid to suppliers for the
products and/or services sold, credit card charges, credits and chargebacks for
returned or canceled goods or services, refunds, handling and shipping charges
(to the extent such charges are competitive) and amounts collected for sales or
use taxes or duties.
IMPRESSION. User exposure to the page containing the applicable Promotion as
set forth in Exhibit A, which links to the Affiliated MP Site, as such exposure
may be reasonably determined and measured by AOL in accordance with its
standard methodologies and protocols.
INTERACTIVE SERVICE. Any entity that offers online or Internet connectivity (or
any successor form of connectivity), aggregates and/or distributes a broad
selection of third-party interactive Content, or provides interactive
navigational services (including, without limitation, any online service
providers, Internet service providers, WebTV, @Home or other broadband
providers, search or directory providers, "push" product providers such as the
Pointcast Network or providers of interactive navigational environments such as
Microsoft's proposed "Active Desktop").
INTERACTIVE SITE. Any interactive site or area, including, by way of example
and without limitation, (i) an MP site on the World Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product such as
the Pointcast Network or interactive environment such as Microsoft's proposed
"Active Desktop."
20
22
LICENSED CONTENT. All Content offered through the Affiliated MP Site pursuant
to this Agreement or otherwise provided to AOL by MP for related purposes
(e.g., Promotions, AOL "slide shows", etc.), including in each case, any
modifications, upgrades, updates, enhancements, and related documentation.
MATERIAL ADVERSE EFFECT. A reduction of at least fifteen percent (15%) in
revenues from the sale of MP Products in comparison to the immediately
preceding two (2) months in sales of the MP Products; provided that the fifteen
percent (15%) reduction in revenues shall not be due to seasonal fluctuations
in sales of the MP Products as determined by a review of general sales patterns
in MP's industry or a review of MP's historical sales patterns with respect to
the MP Products.
MP INTERACTIVE SITE. Any Interactive Site (other than the Affiliated MP Site)
which is managed, maintained, owned or controlled by MP or its agents.
MP PRODUCT. Any product, good or service which MP (or others acting on its
behalf or as distributors) offers, sells, provides, distributes or licenses to
AOL Users directly or indirectly through (i) the Affiliated MP Site (including
through any Interactive Site linked thereto) and which fall in the categories
of products listed on Exhibit D to the Agreement, (ii) any other online means
related to an AOL User's visit to the MP Affiliated Site (e.g., e-mail offers
following user registration), or (iii) an "offline" means (e.g., toll-free
number) for receiving orders related to specific offers within the Affiliated
MP Site requiring purchasers to reference a specific promotional identifier or
tracking code, including, without limitation, products sold through surcharged
downloads (to the extent expressly permitted hereunder).
MUTUAL REVIEW DATE. Eighteen (18) months from the Effective Date.
[*]
RETAIL CLUB. Either (a) a business which sells a collection of goods, services
or products and derives a substantial portion of its revenues from subscription
fees paid by its members in order to gain access to such goods, services or
products (e.g.: CUC International), or (b) a business which initially offers
goods or services to its members at a steep discount in return for a
contractual commitment from such members to purchase a certain number of
goods or services at some future date (e.g.: Columbia Record Club or BMG Music
Club).
RUN OF SERVICE. Random, service-wide, non-placement specific advertising
placements.
SOFTWARE PRODUCTS. Compiled object code applications written in a clearly
defined programming language (e.g. word processing applications computer games,
tax programs, financial calculation applications and educational programs)
which are commercially sold to consumers through a retail store (online or
offline), or outlet.
THRESHOLD. Gross Margins generated by MP hereunder equal to Twenty One Million
Dollars (US $21,000,000) plus the Restricted Product Revenue Share amounts
generated pursuant to Section 3.3 of the Agreement.
TRANSACTION REVENUES. Aggregate amounts paid by AOL Purchasers in connection
with the sale, licensing, distribution or provision of any MP Products.
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23
EXHIBIT C
MP CROSS-PROMOTION
Online
To the extent that MP, provides a promotional banner, button, link or other
promotional presence (a "Promotional Presence") to any other Interactive
Service in an MP Interactive Site, MP shall offer a Promotional Presence to AOL
in such MP Interactive Site linking to such areas of the AOL Network as
determined by AOL and to the extent that MP provides promotional information
about the products of any other Interactive Service, MP shall offer to AOL a
prominent "Try AOL" feature where users can obtain promotional information
about AOL products and services and, at AOL's option, download or order AOL's
then-current version of client software for the AOL Service or software for
any other AOL products or services (e.g., AOL's Instant Messenger service) on
terms and conditions (including, without limitation, scope, purpose, amount,
prominence or regularity) that are no less favorable than the terms and
conditions provided to such other Interactive Service(1). MP shall make the
foregoing offers to AOL within fifteen (15) days of providing a Promotional
Presence to any other Interactive Service. To the extent that MP shall undertake
any of the foregoing promotions with respect to AOL, MP shall also promote AOL
as its preferred Interactive Service with respect to such MP Interactive Site.
Notwithstanding the foregoing, in the event that MP shall design and create a
customized MP Interactive Site which is not generally available to AOL Users,
MP shall not be required to undertake the foregoing promotional obligations
with respect to AOL.
Offline
In MP's televisions, radio and print advertisements and in any publications,
programs, features or other forms of media over which MP exercises at least
partial editorial control, MP shall use commercially reasonable efforts to
include the following:
o Specific reference or mentions (verbally where possible) of the Affiliated
MP Site's availability through America Online(R) prior to, and at least as
prominent as, any reference to any MP Interactive Site; and
o For instance, listing of the "URL(s)" the MP Interactive Site will be
accompanied by the AOL "keyword" for the Affiliated MP Site.
Member Acquisition Programs
The Parties shall negotiate, in good faith, various AOL member acquisition
programs, including without limitation, the bundling of AOL software with
products shipped by MP to existing MP customers who are not AOL Members(2).
------------
(1) AOL will pay MP a one-time standard bounty for each person who registers
for the AOL Network using MP's special identifier for this promotion and
subsequently pays AOL monthly usage fees across at least three billing cycles
for the use of the AOL Network. Note that if this promotion is delivered
through Microsoft's Active Desktop or any other "push" product (an "Operating
System"), such feature will link users directly to AOL software within the
Operating System or direct users without Internet access to an AOL application
setup program within the Operating System (all subject to any standard policies
of the Operating System).
(2) AOL will pay MP a one-time standard bounty for each person who registers
for the AOL Network using MP's special identifier for this promotion and
subsequently pays AOL monthly usage fees across at least three billing cycles
for the use of the AOL Network.
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EXHIBIT D
DESCRIPTION OF MP PRODUCTS AND OTHER CONTENT
Description of MP Products and Other Content
Xxxxxxxx.xxx resells approximately 30,000 software titles from more than 1,000
vendors. The product offerings span a broad cross-section of software and
content. This software and content supports a variety of operating systems,
including Microsoft, Microsoft DOS, Macintosh and UNIX, Products are delivered
via ESD (electronic software download) technology and/or via traditional boxes.
Categories include:
Accounting Software
Back-up Software
CAD Software
Clip Art, Symbol & Image Libraries
Communications Software
Database Software
Desktop Publishing Software
Diagnostic Software
E-Mail, Groupware & Video Conference Software
Education & Edutainment Software
Fax, OCR & Document Imaging Software
File Conversion & File Transfer Software
Font Software
Forms Generator, Designer & Filler Software
Games & Entertainment Software
General Business Software
General Utility Software
Graphics & Presentation Graphics Software
Internet Software
Memory Manager Software
Menu Software & Desktop Organizers
Multimedia Software
Network Management & Utility Software
News & Business Information
Operating System Software
Plug-ins
Printer Utility Software
Programming Languages & Utilities
Project & Time Management Software
Reference & Information Software
Reusable Software Components
Screen Saver Software
Security Software
Statistics Software
Suites & Integrated Software Packages
Tax Software
Termination Emulation Software
Virus Detection Software
Voice Recognition Software
Word Processor Software
Try-Before-You Buy Demo
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Major software vendors include:
Microsoft
Lotus/IBM
Adobe
Symantec
Apple Computer
Netscape
Qualcomm
Intuit
MacAfee
Non-content information
Product descriptions
Third party product reviews
Marketing collateral
Merchandising
Support Directory and Resources
Product Forum
Product Ratings
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EXHIBIT D-1
ANCILLARY PRODUCT CATEGORIES
a. Documentation, manuals, instructional and training materials (e.g.,
videotapes, CD-ROM'S, DVD'S, and user guides),
b. Add-on and upgrade products (e.g., templates, fonts, clip art).
c. Consumable items (special stationery or other special paper).
d. Peripheral hardware equipment required for the correct operation of
software (e.g., dongles, microphones and cables) and other hardware
products packed with and essential to the use of software products.
The foregoing list may be modified by MP from time to time, as mutually agreed
upon by AOL and MP.
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EXHIBIT E
OPERATING STANDARDS
1. General. The Affiliated MP Site (including the MP Products and other
Content contained therein) will be in the top ten (10) in the computer software
industry, as determined by each of the following methods: (a) based on a
cross-section of third-party reviewers who are recognized authorities in such
industry and (b) with respect to all material quality averages or standards in
such industry including each of the following: (i) pricing of MP Products, (ii)
scope and selection of MP Products, (iii) quality of MP Products, (iv) customer
service and fulfillment associated with the marketing and sale of MP Products
and (v) ease of use. In addition, the Affiliated MP Site will, with respect to
each of the measures listed above, be generally competitive in all material
respects with that which is offered by any MP Competitors. In the event that MP
disagrees with AOL's determination with respect to the foregoing, the Parties
shall submit the matter to the Management Committee as provided in Section 7 of
the body of the Agreement.
2. Hosting; Capacity. MP will provide all computer servers, routers,
switches and associated hardware in an amount reasonably necessary to meet
anticipated traffic demands, adequate power supply (including generator
back-up) and HVAC, adequate insurance, adequate service contracts and all
necessary equipment racks, floor space, network cabling and power distribution
to support the Affiliated MP Site.
3. Speed; Accessibility. MP will ensure that the performance and
availability of the Affiliated MP Site (a) is monitored on a continuous, 24/7
basis and (b) remains competitive in all material respects with the performance
and availability of other similar sites based on similar form technology.
4. User Interface. MP will maintain a graphical user interface within the
Affiliated MP Site that is competitive in all material respects with interfaces
of other similar sites based on similar technology. AOL reserves the right to
conduct focus group testing to assess compliance herewith.
5. Service Level Response. MP agrees to provide the following service levels
in response to problems with or improvements to the Affiliated MP Site.
o For material functions of software that are or have become substantially
inoperable, MP will provided a bug fix or workaround within two (2)
business days after the first report of such error.
o For functions of the software that are impaired or otherwise fail to
operate in accordance with agreed upon specifications, MP will provide a
bug fix or workaround within three (3) business days after the first report
of such error.
o For errors disabling only certain non-essential functions, MP will provide
a bug fix or workaround within sixty (60) days after the first report of
such error.
o For all other errors, MP will address these results on a case-by-case basis
as soon as reasonably feasible.
6. Monitoring. AOL Network Operations Center will work with a MP-designated
technical contact in the event of any performance malfunction or other
emergency related to the Affiliated MP Site and will either assist or work in
parallel with MP's contact using MP tools and procedures, as applicable. The
Parties will develop a process to monitor performance and member behavior with
respect to access, capacity, security and related issues both during normal
operations and during special promotion/events.
7. Telecommunications. The Parties agree to explore encryption methodology
to secure data communications between the Parties' data centers. The network
between the Parties will be configured such that no single component failure
will significantly impact AOL Users. The network will be sized such that no
single line runs at more than 70% average utilization for a 5-minute peak in a
daily period.
8. Security Review. MP and AOL will work together to perform an initial
security review of, and to perform tests of the MP system, network, and service
security in order to evaluates the security risks and provides recommendations
to MP, including periodic follow-up reviews as reasonably required by MP or
AOL. MP will fix any security risks or breaches of security as may be
identified by AOL's Operations Security. Specific services to be performed on
behalf of AOL's Operations Security team will be as determined by AOL in its
sole discretion.
9. Technical Performance. MP will perform the following technical
obligations (and any updates thereto provided by AOL from time to time):
o MP will design the Affiliated MP Site to support the Windows version of the
Microsoft Internet Explorer 4.0 browser, and make commercially reasonable
efforts to support all other AOL browsers listed at:
"xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxXxxxx.xxxx."
o MP will configure the server from which it serves the site to examine the
HTTP User-Agent filed in order to identify the "AOL Member-Agents" listed
at "xxxx://xxxxxxxxx.xxxx.xxx.xxx/Xxxx0Xxxx.xxxx."
o MP will design its site to support HTTP 1.0 or later protocol as defined in
RFC 1945 (available at "xxxx://xx.xxxxxxx.xxx/xxx/xxx0000.xxxx" and to
adhere to
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AOL's parameters for refreshing cached information listed at
"xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxxXxxx.xxxx."
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EXHIBIT F
STANDARD ONLINE COMMERCE TERMS & CONDITIONS
1. AOL NETWORK DISTRIBUTION. MP will not authorize or permit any third party
to distribute or promise the MP Products or any MP interactive Site through the
AOL Network absent AOL's prior written approval. The Promotions and any other
promotion or advertisement purchased from or provided by AOL will link only to
the Affiliated MP Site.
2. PROVISION OF OTHER CONTENT. In the event that AOL notifies MP that (i) as
reasonably determined by AOL, any Content within the Affiliated MP Site
violates AOL's then-standard Terms of Service (as set forth on the America
Online(R) brand service), the terms of this Agreement or any other standard,
written AOL policy or (ii) AOL reasonably objects to the inclusion of any
Content within the Affiliated MP Site (other than any specific items of Content
which may be expressly identified in this Agreement), then MP will take
commercially reasonable steps to block access by AOL Users to such Content
using MP's then-available technology. In the event that MP cannot, through its
commercially reasonable efforts, block access by AOL Users to the Content in
question, then MP will provide AOL prompt written notice of such fact. AOL may
then, at its option, restrict access from the AOL Network to the Content in
question using technology available to AOL. MP will cooperate with AOL's
reasonable requests to the extent AOL elects to implement any such access
restrictions.
3. CONTESTS. MP will take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted or promoted through the Affiliated
MP Site (a "Contest") complies with all applicable federal, state and local
laws and regulations.
4. NAVIGATIONAL ICONS. Subject to the prior consent of MP, which consent will
not be unreasonably withheld, AOL will be entitled to establish navigational
icons, links and pointers connecting the Affiliated MP Site (or portions
thereof) with other content areas on or outside of the AOL Network.
5. DISCLAIMERS. Upon AOL's request, MP agrees to include within the
Affiliated MP Site a product disclaimer (the specific form and substance to be
mutually agreed upon by the Parties) indicating that transactions are solely
between MP and AOL Users purchasing MP Products from MP.
6. AOL LOOK AND FEEL. MP acknowledges and agrees that AOL will own all
right, title and interest in and to the elements of graphics, design,
organization, presentation, layout, user interface, navigation and stylistic
convention (including the digital implementations thereof) which are generally
associated with online areas contained within the AOL Network ("the AOL Look
and Feel"), subject to MP's ownership rights in any MP trademarks, service
marks, tradenames or copyrighted material within the Affiliated MP Site and
subject to MP's ownership rights to patents and technology trade secrets and
know-how.
7. MANAGEMENT OF THE AFFILIATED MP SITE. MP will manage, review, delete,
edit, create, update and otherwise manage all MP Products available on or
through the Affiliated MP Site, in a timely and professional manner and in
accordance with the terms of this Agreement. MP will ensure that each
Affiliated MP Site is current, accurate and well-organized at all times. MP
warrants that the MP Products, any other Content contained therein and any
technology used by MP in connection with the delivery of the MP Products: (i)
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; (ii) will not violate AOL's then-applicable Terms
of Service; and (iii) will not violate any applicable law or regulation,
including those relating to contests, sweepstakes or similar promotions.
Additionally, MP represents and warrants that it owns or has a valid license to
all rights to any Licensed Content used in AOL "slide show" or other formats
embodying elements such as graphics, animation and sound, free and clear of all
encumbrances and without violating the right of any other person or entity. MP
also warrants that a reasonable basis exists for all MP Product performance or
comparison claims appearing through the Affiliated MP Site. AOL will have no
obligations with respect to the MP Products available on or through the
Affiliated MP Site, including, but not limited to, any duty to review or
monitor any such MP Products.
8. DUTY TO INFORM. MP will promptly inform AOL of any information related to
the MP Products or Affiliated MP Site which could reasonably lead to a claim,
demand, or liability of or against AOL and/or its affiliates by any third party.
9. CUSTOMER SERVICE. It is the sole responsibility of MP to provide customer
service to persons or entities purchasing MP Products through the AOL Network
("Customers"). AOL will have no obligations whatsoever with respect to customer
service in connection with the sale of MP Products, including without
limitation, order processing, billing, fulfillment, shipment, collection and
other customer service associated with any MP Products
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offered, sold or licensed through the Affiliated MP Site. MP will receive all
e-mails from Customers via a computer available to MP's customer service staff
and generally respond to such e-mails within one business day of receipt. MP
will receive all orders electronically and generally process all orders within
one business day of receipt, provided MP Products ordered are not advance order
items. MP will ensure that all orders of MP Products are received, processed,
fulfilled and delivered on a timely and professional basis. MP will offer AOL
Users who purchase MP Products through such Affiliated MP Site a thirty (30)
day money back satisfaction guarantee with respect to the delivery process
associated with the purchase of the MP Products and any representations in
connection therewith. Additionally, to the extent that the manufacturer of any
MP Product offers a money back guarantee with respect to such MP Product, MP
shall ensure that such money back guarantee is passed on to AOL Users who
purchase MP Products. MP will bear all responsibility for compliance with
federal, state and local laws in the event that MP Products are out of stock or
are no longer available at the time an order is received. MP will also comply
with the requirements of any federal, state or local consumer protection or
disclosure law. Payment for MP Products will be collected by MP directly from
customers. MP's order fulfillment operation will be subject to AOL's reasonable
review.
10. Production Work. In the event that MP requests AOL's production assistance
in connection with (i) ongoing programming and maintenance related to the
Affiliated MP Site, (ii) a redesign of or addition to the Affiliated MP Site
(e.g., a change to an existing screen format or construction of a new custom
form), (iii) production to modify work performed by a third party provider or
(iv) any other type of production work, MP will work with AOL to develop a
detailed production plan for the requested production assistance (the
"Production Plan"). Following receipt of the final Production Plan, AOL will
notify MP of (i) AOL's availability to perform the requested production work,
(ii) the proposed fee or fee structure for the requested production and
maintenance work and (iii) the estimated development schedule for such work. To
the extent the Parties reach agreement regarding implementation of agreed-upon
Production Plan, such agreement will be reflected in a separate work order
signed by the Parties. To the extent MP elects to retain a third party provider
to perform any such production work, work produced by such third party provider
must generally conform to AOL's production Standards & Practices (a copy of
which will be supplied by AOL to MP upon request). The specific production
resources which AOL allocates to any production work to be performed on behalf
of MP will be as determined by AOL in its sole discretion.
11. Overhead Accounts. To the extent AOL has granted MP any overhead accounts
on the AOL service, MP will be responsible for the actions taken under or
through its overhead 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 overhead Account issued to MP, but MP will not be
liable for charges incurred by any overhead account relating to AOL's standard
monthly usage fees and standard hourly charges, which charges AOL will bear.
Upon the termination of this Agreement, all overhead accounts, related
screennames 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 overhead account.
12. AOL User Communications. To the extent MP sends any form of communications
to AOL Users, MP will promote the Affiliated MP Site as the location at which to
purchase Products (as compared to any more general or other site or
location). In addition, MP will not encourage AOL Users to take any action
inconsistent with the scope and purpose of this Agreement, including without
limitation, the following actions: (a) using Content other than the Licensed
Content; (b) bookmarking of interactive Sites other than the Affiliated MP
Site; (c) using interactive Sites other than those covered by the
revenue-sharing provisions herein; (d) changing the default home page on the
AOL browser; or (e) using any interactive Service other than AOL.
13. Merchant Certification Program. MP 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 Network (including, as a minimum, use of
40-bit SSL encryption and if requested by AOL, 128-bit encryption) and may
also require the payment of certain reasonable certification fees to the
applicable entity operating the program. Each Certified Merchant in good
standing will be entitled to place on its affiliated Interactive Site an AOL
designed and approved button promoting the merchant's status as an AOL
Certified Merchant.
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EXHIBIT G
STANDARD LEGAL TERMS & CONDITIONS
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1. 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, press releases, and all other
promotional materials related to the Affiliated MP Site and/or referencing (the
other Party and/or its trade names, trademarks, and service marks the
"Materials"); provided, however, that either Party's use of screen shots of the
Affiliated MP Site for promotional purposes will not require the approval of
the other Party so long as America Online(R) is clearly identified as the
sources of such screen shots. Each Party will solicit and reasonably consider
the views of the other Party in designing and implementing such Materials. Once
approved, the Materials may be used by a Party and its affiliates for the
purpose of promoting the Affiliated MP Site and the content contained therein
and reused for such purpose until such approval is withdrawn with reasonable
prior notice. In the event such approval is withdrawn, existing inventories of
Materials may be depleted. Notwithstanding the foregoing, 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.
2. License. MP hereby grants AOL a non-exclusive worldwide license to market,
license, distribute, reproduce, display, perform, transmit and promote the
Licensed Content, or any portion thereof, (excluding any products contained
therein) through such areas or features of the AOL Network as AOL deems
appropriate. MP acknowledges and agrees that the foregoing license permits AOL
to distribute portions of the Licensed Content in synchronism or timed relation
with visual materials prepared by MP or AOL (e.g., as part of an AOL "slide
show"). In addition, AOL Users will have the right to access and use the
Affiliated MP Site.
3. Trademark License. In designing and implementing the Materials and subject
to the other provisions contained herein, MP will be entitled to use the
following trade names, trademarks, and service marks and AOL: the "America
Online)(R) brand service, "AOL(TM)" service/software and AOL's triangle logo;
and AOL and its affiliates will be entitled to use the trade names,
trademarks, and service marks of MP (collectively, together with the AOL marks
listed above, the "Marks"); provided that each Party: (i) does not create a
unitary composite xxxx involving a Xxxx of the other Party without the prior
written approval of such other Party; and (ii) displays 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.
4. Ownership of Trademarks. Each Party acknowledges the ownership of the
other Party in the Marks of the other Party and agrees that all use of the
other Party's Marks 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, nor will it represent it has, any right, title, or
interest in or to such Marks other than the license expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
5. Quality Standards. 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. Each Party will comply with all applicable laws, regulations,
and customs and obtain any required government approvals pertaining to use of
the other Party's marks.
6. Infringement Proceedings. Each Party agrees to promptly notify the other
Party of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party will have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party
with its reasonable cooperation and assistance with respect to any such
infringement proceedings.
7. 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 this Agreement and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreements to which such Party is a party or by which it
is otherwise bound, and that such Party is not currently a party to any
agreement which would prevent it from performing its obligations under this
Agreement or which would nullify the exclusively obligations of Section 3.1
hereof; (iii) when executed and delivered by such Party, this 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 this Agreement. MP hereby represents and warrants that it possesses all
authorizations, approvals, consents, licenses, permits, certificates or other
rights and permissions necessary to sell the MP Products, and the MP Products
shall be free from all bugs, viruses or other similar
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impairments.
8. 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 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 section. Notwithstanding the foregoing, either Party may issue a
press release or other disclosure containing Confidential Information without
the consent of the other Party, to the extent such disclosure is required by
law, rule, regulation or government or court order. In such event, the
disclosing Party will provide at least five (5) business days prior written
notice of such proposed disclosure to the other Party. Further, in the event
such disclosure is required of either Party under the laws, rules or
regulations of the Securities and Exchange Commission or any other applicable
governing body, such Party will (i) redact mutually agreed-upon portions of
this Agreement to the fullest extent permitted under applicable laws, rules and
regulations and (ii) submit a request to such governing body that such portions
and other provisions of this Agreement receive confidential treatment under the
laws, rules and regulations of the Securities and Exchange Commission or
otherwise be held in the strictest confidence to the fullest extent permitted
under the laws, rules or regulations of any other applicable governing body.
9. Limitation of Liability; Disclaimer; Indemnification.
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 MP PRODUCTS, THE
FRAUDULENT PURCHASE OF MP PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK,
THE AOL SERVICE, XXX.XXX OR THE AFFILIATED MP 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 SECTION 9.2. EXCEPT AS PROVIDED IN SECTION 9.2,
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR MORE THAN [*] PROVIDED THAT
EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT
OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO SECTION 4.
9.1 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE
AOL NETWORK, THE AOL SERVICE, XXX.XXX, THE AFFILIATED MP SITE, ANY MP
INTERACTIVE SITE OR THE MP PRODUCTS 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
THE PROFITABILITY OF THE AFFILIATED MP SITE.
9.2 Indemnity. Except as limited above, 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 this
Agreement, except where Liabilities result from the gross negligence or knowing
and willful misconduct of the other Party.
9.3 Claims. Each Party agrees to (i) promptly notify the other Party in
writing of any indemnifiable claim and give the other Party the opportunity to
defend or negotiate a settlement of such claim at such other Party's expense,
and (ii) cooperate fully with the other Party, at that other Party's expense,
in defending or settling such claim. Each Party reserves the right, at its own
expense, to assume the exclusive defense and control of any matter otherwise
subject to indemnification by the other Party hereunder, and in such event, the
other Party will have no further obligation to provide indemnification for such
matter hereunder.
9.4 Acknowledgment. AOL and MP 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
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*CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
34
liability contained in this Agreement are intended to limit the circumstances
and extent of liability. The provisions of this Section 9 will be enforceable
independent of and severable from any other enforceable or unenforceable
provision of this Agreement.
10 Solicitation of AOL Users. During the terms of this Agreement, and for the
two-year period following the expiration or termination of this Agreement,
neither MP nor its agents will use the AOL Network to (i) solicit, or
participate in the solicitation of AOL Users when that solicitation is for the
benefit of any entity which could reasonably be construed to be or become in
competition with AOL (other than with respect to the MP Products and the
Ancillary Products) or (ii) promote any services which could reasonably be
construed to be in competition with AOL including, but not limited to, services
available through the Internet. In addition, MP may not send AOL Users e-mail
communications promoting MP's Products through the AOL Network without a "Prior
Business Relationship." For purposes of this Agreement, a "Prior Business
Relationship" will mean that the AOL User has either (i) engaged in a
transaction with MP through the AOL Network or (ii) voluntarily provided
information to MP through a contest, registration, or other communication, which
included notice to the AOL User that the information provided by the AOL User
could result in an e-mail being sent to that AOL User by MP or its agents. A
Prior Business Relationship does not exist by virtue of an AOL User's visit to
an Affiliated MP Site (absent the elements above). More generally, MP will be
subject to any standard policies regarding e-mail distribution through the AOL
Network which AOL may implement.
11 Collection of User Information. MP is prohibited from collecting AOL Member
screennames or Prior Business Relationship e-mail addresses from public or
private areas of the AOL Network, except as specifically provided below. MP will
ensure that any survey, questionnaire or other means of collecting AOL Member
screennames or other AOL User e-mail addresses, names, addresses or other
identifying information ("User Information"), including, without limitation,
requests directed to specific AOL Member screennames or AOL User e-mail
addresses and automated methods of collecting such information (an "Information
Request") complies with (i) all applicable laws and regulations and (ii) any
privacy policies which have been issued by AOL in writing during the Term (the
"AOL Privacy Policies"). Each Information Request will clearly and conspicuously
specify to the AOL Users at issue the purpose for which User Information
collected through the Information Request will be used (the "Specified
Purpose").
12 Use of User Information. MP will restrict use of the User Information
collected through an Information Request to the Specified Purpose. In no event
will MP (i) provide User Information to any third party except to the extent
specifically (a) permitted under the AOL Privacy Policies or (b) authorized by
the members in questions), (ii) rent, sell or barter User Information in a
manner that identifies AOL Users as end-users of the AOL Service, XXX.xxx or the
AOL Network or (iv) otherwise use any User Information in contravention of
Section 10 above. Notwithstanding the foregoing, MP may disclose User
Information to its publishers and vendors for (a) registration purposes and (b)
in connection with specific fraud prevention measures, and in the case of AOL
Members who purchase MP Products from MP, MP will be entitled to use User
Information from such AOL Members as part of MP's aggregate list of Customers;
provided that MP's use does not in any way identify, promote or otherwise
disclose such User Information in a manner that identifies such AOL Members as
end-users of the AOL Service, XXX.xxx or the AOL Network. In addition, MP will
not use any User Information for any purpose (including any Specified Purpose)
not directly related to the business purpose of the Affiliated MP Site.
13 Excuse. Neither Party will be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement 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.
14 Independent Contractors. The Parties to this 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. This Agreement will not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
15 Notice. 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 on the delivery date if
delivered by electronic mail on the AOL Network to screenname
"XXXXxxxxx@xxx.xxx" or (i) on the delivery date if delivered personally to the
Party to whom the same is directed; (ii) one business day after deposit with a
commercial overnight carrier, with written verification of receipt, or (iii)
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
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available, to the person(s) specified above at the address of the Party set
forth in the first paragraph of this Agreement. With respect to AOL, notice
shall be sent to the Senior Vice President of Business Affairs and the Deputy
General Counsel.
16 No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this 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.
17 Return of Information. Upon the expiration or termination of this
Agreement, each Party will, upon the written request of the other Party, return
or destroy (at the option of the Party receiving the request) all confidential
information, documents, manuals and other materials specified the other Party.
18 Survival. Section 4.8 of the Agreement and Sections 9 through 12 of this
Exhibit G, will survive the completion, expiration, termination or cancellation
of this Agreement.
19 Entire Agreement. This Agreement sets forth the entire agreement and
supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein. Neither Party will be bound by, and each Party
specifically objects to, any term, condition or other provision which is
different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) and which is proffered by the
other Party in any correspondence or other document, unless the Party to be
bound thereby specifically agrees to such provision in writing.
20 Amendment. No change, amendment or modification of any provision of this
Agreement will be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment, and in the case of AOL, by an
executive of at least the same standing to the executive who signed the
Agreement.
21 Further Assurances. Each Party will take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
22 Assignment. Neither Party will assign this Agreement or any right, interest
or benefit under this Agrement without the prior written consent of the other
Party; provided that, in the event of a Party's sale, consolidation or merger,
the other Party's prior approval shall not be required. 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.
23 Construction; Severability. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this 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.
24 Remedies. Except where otherwise specified, the rights and remedies granted
to a Party under this 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; provided that, in connection with any dispute hereunder, MP will not be
entitled to offset any amounts that it claims to be due and payable from AOL
against amounts otherwise payable by MP to AOL.
25 Applicable Law; Jurisdiction. This 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. Each Party irrevocably
consents to the exclusive jurisdiction of the courts of the Commonwealth of
Virginia and the federal courts situated in the Commonwealth of Virginia, in
connection with any action to enforce the provisions of this Agreement, to
recover damages or other relief for breach or default under this Agreement, or
otherwise arising under or by reason of this Agreement.
26 Export Controls. Both Parties will adhere to all applicable laws,
regulations and rules relating to the export of technical data and will not
export or re-export any technical data, any products received from the other
Party or the direct product of such technical data to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
27 Headings. The captions and headings used in this Agreement are inserted for
convenience only and will not affect the meaning or interpretation of this
Agreement.
28 Counterparts. This 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.
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