Exhibit 10.3
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF
THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
This agreement (the "Agreement"), effective as of April 16th, 1998 (the
"Effective Date"), is made and entered into by and between America Online, Inc.
("AOL"), a Delaware corporation, with its principal offices at 00000 XXX Xxx,
Xxxxxx, Xxxxxxxx 00000, and XxxXxxxxx.xxx, L.L.C. ("Interactive Content
Provider" or "ICP"), a limited liability corporation, with its principal offices
at Xxx Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (each a "Party" and collectively the
"Parties").
INTRODUCTION
AOL and ICP each desires that AOL provide access to the ICP Internet
Site (as defined below) through the AOL Network (as defined below), subject to
the terms and conditions set forth in this Agreement. Defined terms used but not
defined in the body of this Agreement or in Exhibit C shall be as defined on
Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 Anchor Tenancy. Beginning on the Launch Date, ICP shall
receive anchor tenant distribution within the Personal Finance
channel (or any specific successor thereof) offered on the AOL
Service, as follows: AOL shall (a) continuously and
prominently place an agreed-upon ICP icon, symbol, name, logo
or banner (each, an "Anchor Tenant Button") on the "Active
Investor" screen (or any specific successor thereof), on which
ICP's Anchor Tenant Button shall be ***** Anchor Tenant
Buttons, and the "Investing Forums" screen (or any specific
successor thereof), on which ICP's Anchor Tenant Button shall
be ***** (based on relevant factors, e.g. ***** considered as
a whole and not individually) ***** any other anchor tenant's
***** which is continuously displayed on such screen. Such
Anchor Tenant Buttons shall each, through a uniform resource
locator ("URL"), link to the Welcome Mat on the World Wide
Web, or to some other mutually agreed-upon area(s) within the
AOL Network (i.e. in "Rainman"), (b) provide ICP with the
keywords "TheStreet" "XxxXxxxxx.xxx" and "TSC" which shall
link to the Welcome Mat, and (c) list the ICP Internet Site in
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AOL's "Directory of Services" "Keywords" and "Find" features.
Except to the extent expressly described herein, the exact
form, placement and nature of the Anchor Tenant Button shall
be determined by AOL in it's ***** editorial discretion.
1.1.1 AOL further agrees to ***** communicate with ICP
during the Term regarding AOL's editorial needs *****
of integrating ICP's Content into the Personal
Finance channel. Such communication may result in the
promotion of ICP from the main screen of the Personal
Finance channel. Any such promotion shall be at the
sole discretion of AOL.
1.2 Content. The ICP Internet Site shall consist of the Licensed
Content described on Exhibit A hereto. In addition, the
Original Content described on Exhibit A shall be published
within the AOL Network (i.e. in Rainman, AOL's proprietary
publishing tool). ICP shall not authorize or actively
facilitate any third party to distribute any other Content of
ICP through the AOL Network absent AOL's prior written
approval; provided, however, that AOL acknowledges and
understands that ***** without ICP's ***** and AOL agrees that
ICP ***** as a result thereof. The inclusion of any additional
Content for distribution through the AOL Network (including,
without limitation, any features, functionality or technology)
not expressly described on Exhibit A shall be subject to AOL's
prior written approval.
1.3 License. ICP hereby grants AOL a worldwide license to use,
market, store, distribute, display, communicate, perform,
transmit, and promote the ICP Internet Site and the Licensed
Content (or any portion thereof), solely for the personal use
of its AOL Members, through the AOL Network as AOL may
determine in its sole discretion, including without limitation
the right to integrate Content from the ICP Internet Site by
linking to specific areas on the ICP Internet Site, provided
that the presentation of any such Content on the AOL Network
shall conform with the specifications set forth on Exhibit D;
provided, however, *****.
1.4 Management. ICP shall, design, create, edit, manage, update,
and maintain the ICP Internet Site and the Licensed Content or
arrange for same on its behalf. Except as specifically
provided for herein, AOL shall have no obligations of any kind
with respect to the ICP Internet Site. ICP shall be
responsible for any hosting or communication costs associated
with the ICP Internet Site (including, without limitation, the
costs associated with (i) any agreed-upon direct connections
between the AOL Network and the ICP Internet Site or (ii) a
mirrored version of the ICP Internet Site, provided at the
discretion of the ICP. *****.
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1.5 Carriage Fee. ICP shall pay AOL a one-time fee of ***** which
shall be due no later than thirty (30) days after the
Effective Date.
1.6 Impressions Guarantee. AOL shall provide ICP with at least
***** Impressions (as defined below) from ICP's presence on
the AOL Network (the "Impressions Guarantee"). For the
purposes of this Agreement ***** ICP's presence on an AOL
screen shall conform to the specifications set forth on
Exhibit D (each, an "ICP Presence"), provided that only
screens that contain a link to the ICP Internet Site or a
Welcome Mat (as defined herein) will count against the
Impressions Guarantee. In the event that the Impressions
Guarantee is not met during the Term, at AOL's option either
(a) the Term shall be extended for up to ***** months without
additional carriage fees payable by ICP *****, or (b) AOL
shall provide ICP with the remain ing Impressions in the form
of advertising space within the AOL Network of comparable
value ***** to the undelivered Impressions.
2. PROMOTION
2.1 Cooperation. Each Party shall cooperate with and reasonably
assist the other Party in supplying material for marketing and
promotional activities.
2.2 Interactive Site. During the Term, ICP shall include within
each ICP Interactive Site (a) a continuous ***** promotional
button/link for AOL appearing on the first screen of the ICP
Interactive Site, (b) a prominent "Try AOL" feature where
users can obtain promotional information about the AOL Network
and/or any ***** products and services available through the
AOL Network and, at AOL's option, download or order AOL's
then-current version of client software for the America
Online(R) brand service or other AOL products, such as AOL's
"Instant Messenger(R)"; (c) ***** promotion for the keywords
associated with ICP's Internet Site; and (d)*****.
2.3 Other Media. ICP shall ***** prominently and regularly promote
AOL and the ICP Internet Site's availability through the AOL
Service in publications, programs, features or other forms of
media over which ICP exercises *****.
2.4 Keyword Promotion. In any instances when ICP makes promotional
reference to an ICP Interactive Site, including any listings
of the applicable "URL(s)" for such web site(s) (each a "Web
Reference"), *****.
2.5 Preferred Access Provider.
2.5.1 *****
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3. REPORTING
3.1 Usage and Other Data. AOL shall make available to ICP a
monthly report specify ing for the prior month aggregate usage
and Impressions with respect to ICP's presence on the AOL
Network. ICP will supply AOL with monthly reports which
reflect total daily Impressions by AOL Members to the ICP
Internet Site during the prior month and the number of and
dollar value associated with the transactions involving AOL
Members at the ICP Internet Site during the period in
question. ICP shall also provide AOL with "click-through" data
with respect to the promotions specified in Section 2.
3.2 Promotional Commitments. ICP shall provide to AOL a monthly
report documenting ICP's compliance with any promotional
commitments undertaken pursuant to this Agreement which report
shall be in the form attached as Exhibit F hereto.
3.3 Payment Schedule. Except as otherwise specified herein, each
Party agrees to pay the other Party all amounts received and
owed to such other Party as described herein on a quarterly
basis within thirty (30) days of the end of the quarter in
which such amounts were collected by such Party. The first
quarter for which payment is to be made shall (i) begin on the
first day of the month following the month of full execution
of Agreement and (ii) include the portion of the month of
execution following the Effective Date (unless the Agreement
was executed on the first day of a month, in which case the
quarter shall be deemed to begin on the first day of such
month).
4. ADVERTISING AND MERCHANDISING
4.1 Advertising Sales. Except as may be specifically provided
below, AOL owns all right, title and interest in and to the
advertising and promotional spaces within the AOL Network
(including, without limitation, advertising and promotional
spaces on any AOL forms or pages preceding or framing the ICP
Internet Site). The specific advertising inventory within any
such AOL forms or pages shall be as reasonably determined by
AOL.
4.2 Live Event Advertisements. With respect to the live event
programming provided to AOL hereunder and specified on Exhibit
A.2 (the "Live Event Programming"), AOL shall have the
exclusive right to license or sell promotions, advertisements,
links, pointers or similar services or rights in or through
the area for any Live Event Programming ("Live Event
Advertisements"). AOL shall pay ICP ***** of the
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Advertising Revenues generated by AOL or its agents with
respect to Live Event Advertisements.
4.3 Original Content Advertisements. With respect to the original
content provided to AOL hereunder and specified on Exhibit A,
(the "Original Content"), AOL hereby grants ICP the right to
license or sell promotions, advertisements, links, pointers or
similar services or rights in or through the area for any
Original Content including ***** associated with the ICP
Internet Site ("Original Content Advertisements" or "AOL
Advertisements"), subject to (i) each Original Content
Advertisement being in compliance with AOL's advertising
policies referred to herein and (ii) *****. ICP shall pay AOL
***** of the Advertising Revenues generated by ICP or its
agents with respect to Original Content Advertisements.
4.4 Advertising Policies. Any AOL Advertisements sold by ICP or
its agents shall be subject to AOL's then-standard advertising
policies, a copy of which shall be furnished to ICP *****
during the Term. In connection with the sale by ICP of any AOL
Advertisement, ICP shall, in each instance, provide AOL with a
completed standard AOL advertising registration form relating
to such AOL Advertisement. ICP shall take all steps necessary
to ensure that any AOL Advertisement sold by ICP complies with
all applicable federal, state and local laws and regulations.
To the extent ICP sells an AOL Advertisement as part of an
advertising package including multiple placement locations,
ICP shall allocate the payment for such advertising package
between or among such locations in an equitable fashion,
*****.
4.5 Interactive Commerce. Any merchandising on the ICP Internet
Site shall be subject to (i) the then-current requirements of
AOL's merchant certification program and (ii) ICP implementing
sufficient procedures to protect the security of all mer
chandising on the site (i.e., ICP shall as of the Effective
Date use 40-bit SSL technology and, if requested by AOL,
128-bit SSL).
4.5.1 Subscriptions. AOL Members shall receive a *****
discount on any subscriptions to the ICP Internet
Site during the term of this Agreement.
5. CUSTOMIZED LINKED INTERACTIVE SITE
5.1 Performance.
5.1.1 Generally. ICP shall ***** optimize the ICP Internet
Site according to AOL specifications and guidelines
(which may currently be found at key word:
"Webmaster", and/or at *****) with the objective of
ensuring that (i) the
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functionality and features within the ICP Internet Site are
optimized for the client software then in use by a majority of
AOL Members as notified to ICP by AOL and (ii) the forms used
in the ICP Internet Site are designed and populated in a
manner intended to minimize delays when AOL Members attempt to
access such forms. ICP will use reasonable commercial efforts
to ensure that the performance and availability of the ICP
Internet 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. It shall be the responsibility of AOL
to inform ICP of the specific AOL client software version then
in use by a majority of AOL Members if and when it is
determined, in AOL's reasonable discretion, that the ICP
Internet Site is not optimized for such client software.
5.1.2 Specific.
(a) ICP shall design the ICP Internet Site to support
the Windows version of the Microsoft Internet
Explorer 3.0 browser, and make commercially
reasonable efforts to support all other AOL browsers
listed at: *****
(b) ICP shall configure the server from which it
serves the ICP Internet Site to examine the HTTP
User-Agent field in order to identify the AOL
User-Agents listed at: ***** (the "AOL User-Agents").
(c) ICP shall design its web site to support HTTP 1.0
or later protocol as defined in RFC 1945 (available
at xxxx://xx.xxxxxxxx.xxx/xxx/xxx0000.xxxx) and to
adhere to AOL's parameters for refreshing cached
information listed at *****.
(d) AOL reserves the right to review the ICP Internet
Site and/or have its technical personnel meet with
ICP technical personnel with respect to the ICP
Internet Site with the objective of ensuring that
such site is compatible with AOL's then-available
client and host software and the AOL Network.
5.2 Customization. ICP shall customize the ICP Internet Site for
AOL Members as follows:
(a) upon AOL's request create a customized,
co-branded home page for the AOL audience for each
area on the ICP Internet Site linked to and/or from
the AOL Network on a continuous basis (each a
"Welcome Mat"), which
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Welcome Mat(s) shall be subject to AOL approval, not
to be unreasonably withheld;
(b) ensure that AOL Members linking to the ICP
Internet Site do not receive advertisements,
promotions or links for any entity which AOL has
notified ICP, or shall subsequently notify ICP in
writing, is in competition with AOL or which AOL has
notified ICP, or shall subsequently notify ICP in
writing, is otherwise in violation of AOL's
then-standard advertising policies or exclusivities;
and
(c) provide continuous navigational ability for AOL
Members to return to an agreed-upon point on the AOL
service (for which AOL shall supply the proper
address) from the ICP Internet Site (e.g., the point
on the AOL service from which the ICP Internet Site
is linked), which, at AOL's option, may be satisfied
through the use of a hybrid browser format.
5.3 Links on ICP Internet Site. The Parties will work together on
mutually acceptable links (including links back to AOL) within
the ICP Internet Site in order to attempt to create a robust
and engaging AOL member experience. ICP shall take reasonable
efforts to encourage that AOL traffic is generally either kept
within the ICP Internet Site or channeled back into the AOL
Network. To the extent that AOL notifies ICP in writing that,
in AOL's reasonable judgment, links from such site cause an
excessive amount of AOL traffic to be diverted outside of
such site and the AOL Network in a manner that has a
detrimental effect on the traffic flow of the AOL audience,
then ICP shall promptly take reasonable steps to attempt to
reduce the number of links out of such site(s).
5.4 Hosting Capacity. ICP 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,
xxx xxxxx insurance, adequate service contracts and all
necessary equipment racks, floor space, network cabling and
power distribution to support the ICP Internet Site. AOL shall
provide ICP with reasonable, best available estimates of
anticipated traffic demands associated with the AOL Network
and ICP's performance hereunder, which ICP will rely upon in
connection with the foregoing obligation.
6. TERM AND TERMINATION.
6.1 Term. Unless earlier terminated as set forth herein, the
initial term of this Agree ment shall be one (1) year from the
Effective Date. Upon termination of this Agreement, AOL shall
have the option, for a period equal to the initial term, to
use one or more
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ICP keywords and/or text-based links from the AOL Network to
the ICP Internet Site. This Agreement may be extended by
mutual written agreement of the Parties.
6.2 Termination for Breach. Either Party may terminate this
Agreement at any time in the event of a material breach by the
other Party which remains uncured after thirty (30) days'
written notice thereof.
6.3 Termination for Bankruptcy/Insolvency. Either Party may
terminate this Agree ment immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (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.
7. TERMS AND CONDITIONS. To the extent not otherwise inconsistent with the
above terms and conditions of this Agreement the legal terms and
conditions set forth on Exhibit C attached hereto are hereby made a
part of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the Effective Date.
AMERICA ONLINE, INC. XXXXXXXXX.XXX, L.L.C.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxx
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Print Name: Xxxxx Xxxxxxx Print Name: Xxxxxxx Xxxxx
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Title: President, AOL Interactive Services Title: Chief Operating Officer
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Date: 4/16/98 Date: April 16, 1998
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Tax ID/EIN#:
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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EXHIBIT F
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Exhibit G
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DEFINITIONS AND REFERENCES
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