Exhibit 10.2
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CONFIDENTIAL
CONTENT LICENSE AND INTERACTIVE MARKETING AGREEMENT
This Content License and Interactive Marketing Agreement (the
"Agreement"), dated as of December 1, 1999 (the "Effective Date"), is between
America Online, Inc. ("AOL"), a Delaware corporation, with offices at 00000 XXX
Xxx, Xxxxxx, Xxxxxxxx 00000, and TMP Interactive, Inc. d/b/a Xxxxxxx.xxx
("Interactive Content Partner" or "ICP"), a Delaware corporation, with offices
at 0 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxxx 00000. AOL and ICP may
be referred to individually as a "Party" and collectively as the "Parties."
RECITALS
A. ICP is the leading provider of online career information, job search
tools, resume building and resume search tools, and job listing and
resume data.
B. In certain areas of the AOL Properties, AOL currently offers online
career-related content to AOL Users, including classified listings and
career related information.
C. AOL and ICP each desires that ICP be the exclusive provider of the
products and services specified in Section 3.1 hereof, and that AOL
promote and distribute several co-branded interactive sites
collectively referred to (and further defined) herein as the Affiliated
ICP Sites.
D. This relationship is further described below and is subject to the
terms and conditions set forth in this Agreement.
E. Defined terms used but not defined in the body of the Agreement will be
as defined on Exhibit B attached hereto.
AGREEMENT
1. PROMOTION, DISTRIBUTION AND MARKETING.
1.1. AOL PROMOTION OF AFFILIATED ICP SITES.
1.1.1. Subject to the terms of this Agreement, AOL will provide
ICP with the phased promotions for the Affiliated ICP
Sites described on Exhibit A attached hereto. Subject to
ICP's approval (not to be unreasonably withheld), AOL
will have the right to fulfill its promotional
commitments with respect to any of the foregoing by
providing ICP comparable promotional placements in
appropriate alternative areas of the AOL Properties. In
addition, if AOL is unable to deliver any particular
Promotion, AOL will work with ICP to provide ICP, as its
sole remedy, 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 Network at any time. In the
event such modifications materially and adversely affect
any specific Promotion, AOL will work with ICP to
provide ICP, as its sole remedy, a comparable
promotional placement. As used throughout this
Agreement, the phrases "comparable promotional
placements" or "comparable promotions" shall mean
placements which are of comparable overall value,
[*****], to be determined based on a variety of factors,
including without limitation size, quality, type (e.g.,
integrated or banner), location (I.E., page or screen
and the subject matter thereof) and /or demographically
targeted relevance, audience reach (taking into
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account the targeted nature of the placement) and the
performance of the placement (i.e., response rate of AOL
Users).
1.1.2. In the event the Parties cannot mutually agree as to a
comparable promotional placement as addressed in Section
1.1.1, such matter shall be submitted to the Management
Committee as provided in Section 6 of this Agreement. In
the event that the Management Committee is unable to
agree as to a comparable promotional placement within
fifteen (15) days from commencement of good-faith
negotiations, the Management Committee shall jointly
select a mediator (or, if the Management Committee
cannot agree on a mediator, a mediator designated by the
American Arbitration Association). [*****]
1.2 INTEGRATION IMPRESSIONS COMMITMENT; BANNER IMPRESSIONS COMMITMENT.
1.2.1 INTEGRATION. During the Initial Term, AOL shall
integrate the integrated Promotions set forth on Exhibit
A hereto and designated as "Integrated Impressions" into
the Career Areas so as to deliver to ICP [*****]
Integrated Impressions as set forth on Exhibit A
(collectively, the "Integrated Impressions Commitment").
With respect to the Integrated Impressions targets
specified on Exhibit A, AOL will not be obligated to
provide in excess of any Integrated Impressions target
amounts in any Year. In the event of an excess in
delivery of Integrated Impressions, ICP shall have no
obligation to compensate AOL therefor and AOL shall have
no right to deduct all or any portion of such
overdelivery from the subsequent Year's Integrated
Impressions target. Any shortfall in Integrated
Impressions at the end of a Year will not be deemed a
breach of the Agreement by AOL; instead any such
shortfall greater than [*****] percent ([*****]%) of the
annual Integrated Impressions target for such Year (as
set forth on Exhibit A) will be added to the Integrated
Impressions target for the subsequent Year (as set forth
on Exhibit A). In the event there is (or will be in
AOL's reasonable judgment) a shortfall in Integrated
Impressions as of the end of the Initial Term greater
than twenty five percent of the total Integrated
Impressions Commitment for the Term as set forth on
Exhibit A (an "Integrated Impressions Final Shortfall"),
AOL will, within twelve (12) months of the end of the
Initial Term, provide ICP, as its sole remedy, with
Integrated Impressions equal in number to the Integrated
Impressions Final Shortfall, which Integrated
Impressions will point to the Principal ICP Interactive
Site.
1.2.2. BANNER IMPRESSIONS. During the Initial Term, AOL shall
deliver to ICP [*****] Banner Impressions (as
designated on Exhibit A) in the areas of the AOL
Properties set forth on Exhibit A hereto (the "Banner
Impressions Commitment"). AOL shall use commercially
reasonable efforts to deliver the Banner Impressions as
evenly as possible over the course of the Initial Term.
With respect to the Banner Impressions targets specified
on Exhibit A, AOL will not be obligated to provide in
excess of any Banner Impressions target amounts in any
Year. In the event AOL provides an excess of any annual
Banner Impressions target amounts in any Year, the
Banner Impressions target for the subsequent Year will
be reduced by the amount of such excess, up to a maximum
of [*****] percent ([*****]%) of any such Banner
Impressions Target. Any shortfall in Banner Impressions
at the end of a Year will not be deemed a breach of the
Agreement by AOL; instead the entire
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amount of such shortfall will be added to the Banner
Impressions target for the subsequent Year. In the event
there is (or will be in AOL's reasonable judgment) a
shortfall in Banner Impressions as of the end of the
Initial Term (a "Banner Impressions Final Shortfall"),
AOL will, within twelve (12) months of the end of the
Initial Term, provide ICP, as its sole remedy, with
comparable Banner Impressions equal in number to the
Banner Impressions Final Shortfall, which Banner
Impressions will point to the Principal ICP Interactive
Site.
1.3 CONTENT OF PROMOTIONS. The Promotions will link to the
Affiliated ICP Sites and will promote only the ICP Products
described on Exhibit D; provided, however, that prior to the
launch of the Affiliated ICP Sites and during any Renewal Term,
the Promotions will link to the Principal ICP Interactive Site.
ICP agrees that it shall make no material change to the nature
of or content offerings on the Principal ICP Interactive Site
prior to the launch of the Affiliated ICP Sites. The specific
ICP Content to be contained within the Promotions described in
Exhibit A (the "Promo Content") will be determined by ICP,
subject to AOL's technical limitations, the terms of this
Agreement and AOL's then existing generally applicable policies
relating to advertising and promotions (the "Ad Policies"),
[*****]. ICP will submit in advance to AOL for its review a
quarterly online marketing plan with respect to the Affiliated
ICP Sites. The Parties will meet in person or by telephone at
least monthly to (i) review operations and performance
hereunder, including a review of the Promo Content to ensure
that it is designed to maximize performance and (ii) review the
specific format, placement, duration and nature of the
Promotions relating to Banner Impressions which AOL has
determined to use in its reasonable editorial discretion
(consistent with the editorial composition of the applicable
screens) upon consultation with ICP. In order to optimize the
Promo Content, ICP will update such Promo Content no less than
twice per month or at such other frequency as practicable, as
the Parties shall mutually determine. Except to the extent
expressly described herein, and subject to the terms of this
Agreement, including, without limitation, AOL's right to
redesign or modify the AOL Network, the specific format,
placement, duration and nature of the Promotions relating to
Integrated Impressions will be as set forth in the Programming
Plan.
1.4 ICP PROMOTION OF AFFILIATED ICP SITES AND AOL. As set forth in
xxxxxx detail in Exhibit C, ICP will promote AOL's Interactive
Service on the Principal ICP Interactive Site and will at its
discretion promote the availability of the Affiliated ICP Sites
through the AOL Properties. ICP agrees not to promote any other
Interactive Service as its preferred Interactive Service during
the Term and will consider, in ICP's sole discretion, promoting
AOL as ICP's preferred Interactive Service when appropriate. In
the event that ICP proposes to institute with another Interactive
Service a promotion similar to the promotion set forth on Exhibit
C, ICP will grant AOL the right to participate in the same or a
similar promotion on the same terms offered to such other
Interactive Service.
2 AFFILIATED ICP SITES.
2.1 CONTENT; LOCAL CONTENT. ICP will make available through the
Affiliated ICP Sites (when constructed) the comprehensive offering
of career-related Products and related Content described on
Exhibit D to this Agreement to the same extent as provided on the
Principal ICP Interactive Site. Except as mutually agreed in
writing by the Parties, the Affiliated ICP Sites will contain only
Content that is directly related to the ICP Products listed on
Exhibit D, and the programming objectives listed in the
Programming Plan. On the Affiliated ICP Sites ICP will not
promote, sell, offer or otherwise distribute any products or
services other than those
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related to jobs or careers or other than as set forth on
Exhibit D. ICP may in its discretion utilize any sales format
to distribute the Products on Exhibit D, [*****]. Additionally,
ICP shall not direct AOL Users accessing the Affiliated ICP
Sites to contact ICP through any non-online means (e.g.,
telephone) other than as a means of providing customer service
or technical assistance. ICP will review, delete, edit, create,
update and otherwise manage all Content available on or through
the Affiliated ICP Sites in accordance with the terms of this
Agreement. ICP will ensure that the Affiliated ICP Sites do not
in any respect promote, advertise, market or distribute (a) the
products, services or content of any other Interactive Service
or (b) AOL Premier Partner Categories (except that (i) the
foregoing restrictions shall not apply to job listings or
Project Profiles posted by any Interactive Service or by the
marketer of products or services within any AOL Premier Partner
Category which ICP includes on the Affiliated ICP Sites in the
ordinary course, and (ii) ICP shall not be responsible for
enforcing these restrictions with respect to any advertisements
on the Affiliated ICP Sites which are placed by AOL in
accordance with Section 2.10.1). ICP shall ensure, to the
extent feasible, that job listings represent opportunities
which are available at the time of listing (e.g., no general
ads for employment agencies) and any such listings shall be
removed from the Affiliated ICP Sites as promptly as possible
following notification to ICP (or knowledge of ICP) of the
filling of such positions. In the event that ICP elects to
include local Content or information on the Affiliated ICP
Sites, ICP shall feature Digital City as the sole provider of
local city information on such Site(s) and (ii) provide links
from such Site(s) to specific Digital City resources to be
mutually agreed upon by the Parties (e.g., maps, weather,
dining guides, destination guides, etc.). In the event that ICP
elects to include local content or information on the Principal
ICP Interactive Site, ICP (i) shall include Digital CIty as a
local content provider and (ii) shall not promote any other
party as a premier or preferred provider of such local content;
provided that the Digital City areas of the Principal ICP
Interactive Site shall feature co-branding in accordance with
ICP's reasonable co-branding requirements, which shall be
similar in format to the co-branded AOL/Digital City Affiliated
ICP Site.
2.2 EDITORIAL CONTENT. As further described in the Programming Plan,
ICP shall provide AOL with certain content designed to supplement
the Products specified on Exhibit D (e.g., articles, job search
advice, etc.) (collectively, "Editorial Content") that will be
accessed by AOL Users through the Career Areas. In the event that
AOL reasonably desires to offer Editorial Content in a particular
category not then offered by ICP, AOL shall notify ICP of its
desire to offer such Editorial Content, and the Parties shall work
together to jointly develop a strategy for obtaining Editorial
Content for such particular category on or through the relevant
AOL Property (to the reasonable satisfaction of AOL) within thirty
(30) days following AOL's request. The Parties anticipate that ICP
will be willing to develop and provide Editorial Content for any
particular category as reasonably requested by AOL. The Parties
acknowledge that AOL is permitted under this Agreement to procure
Editorial Content from sources other than ICP.
2.3 COMPLEMENTARY PRODUCTS AND SERVICES. Subject to Section 4.8, in
the event that ICP desires to offer any of the Complementary
Products and Services on or through any Affiliated ICP Site, ICP
shall notify AOL of such desire, and the Parties shall negotiate
in good faith (subject to the terms of any then-existing
agreements with respect to any such Complementary Products and
Services to which AOL may then be a party) in an effort to
incorporate such Complementary Products and Services into the
Affiliated ICP Site(s).
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2.4 PRODUCTION WORK. Except as agreed to in writing by the Parties
pursuant to Section 10 of Exhibit F hereto and Section 2.10
hereof, ICP will be responsible for all production work associated
with the Affiliated ICP Sites, including all related costs and
expenses.
2.5 TECHNOLOGY. ICP will take all commercially reasonable steps
necessary to conform its promotion and offering of the ICP
Products through the Affiliated ICP Sites to the then-existing
technologies identified by AOL which are optimized for the AOL
Properties. AOL will be entitled to require reasonable changes to
the technological aspects of the Content within any linked pages
of any Affiliated ICP Site to the extent such technological
aspects of the Content will, in AOL's good faith judgment,
materially adversely affect any operational aspect of the AOL
Network, PROVIDED that the incremental investment is reasonable
relative to the AOL User traffic and is in accordance with
accepted industry standards. AOL reserves the right to review and
test the Affiliated ICP Sites from time to time to determine
whether the sites are compatible with AOL's then-available client
and host software and the AOL Network. AOL shall provide ICP
without charge reasonable technical assistance and guidance
necessary to help ICP comply with the requirements of this Section
2.5, provided, however, that ICP shall bear all its own internal
costs related to its compliance hereunder. ICP acknowledges that
ICQ may require changes to, and programming of, the ICQ-Monster
Affiliated ICP Site that differs from the other Affiliated ICP
Sites. ICP shall use commercially reasonable efforts to comply
with ICQ's requirements hereunder. In the event that ICP's
compliance with this Section 2.5 causes a material adverse effect
on ICP's ability to perform under this Agreement, ICP may submit
such matter to the Management Committee to devise an appropriate
resolution to alleviate the effects of compliance.
2.6 PRODUCTS OFFERING. Subject to the limitations on Affiliated ICP
Site Content contained in Section 2.1 above, ICP will ensure that
each of the Affiliated ICP Sites includes all of the job listings,
resume builder, resume database, and other Content (including,
without limitation, any features, offers, contests, functionality
or technology) that are then made available by or on behalf of ICP
through the Principal ICP Interactive Site; PROVIDED, HOWEVER,
that 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 or
contravenes the terms of any agreement); and provided, further
that to the extent AOL exercises any right it may have under this
Agreement not to permit certain Content or Products to be included
in the Affiliated ICP Sites, ICP's obligation under this Section
2.6 shall be excused. The Parties acknowledge and agree that the
Affiliated ICP Sites will require password access by an AOL User
to such AOL User's resume in the resume database and that an AOL
User shall not be permitted to access any other user's resume
through any Affiliated ICP Site.
2.7 PRICING AND TERMS. ICP will ensure that: (i) the prices (and any
other required consideration), to the extent applicable, for
Products in the Affiliated ICP Sites do not exceed the prices for
the Products or substantially similar Products offered by or on
behalf of ICP generally through the Principal ICP Interactive Site
or other distribution channels, and (ii) the terms and conditions
related to Products in the Affiliated ICP Sites are no less
favorable in any material respect to the terms and conditions for
the Products or substantially similar Products offered by or on
behalf of ICP generally through the Principal ICP Interactive Site
or other distribution channels.
2.8 EXCLUSIVE OFFERS/MEMBER BENEFITS. ICP will generally promote
through the Affiliated ICP Sites any special or promotional offers
made available by or on behalf of ICP through the Principal ICP
Interactive Site. ICP shall not be required to comply with the
foregoing if compliance therewith would cause a breach by ICP with
any of its contractual obligations existing on the date hereof. In
addition, ICP shall promote through the Affiliated ICP Sites (in
no event less then once per quarter) special offers exclusively
available to AOL Users (the "AOL Exclusive Offers"). The AOL
Exclusive Offer made available by ICP shall provide a
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substantial member benefit to AOL Users. AOL Exclusive Offers to
be made available by ICP may from time to time consist of the AOL
Exclusive Offers listed on Exhibit D-1 attached hereto. ICP will
provide AOL with reasonable prior notice of AOL Exclusive Offers
so that AOL can market the availability of such AOL Exclusive
Offers in the manner AOL deems appropriate in its editorial
discretion.
2.9 OPERATING STANDARDS. ICP will ensure that the Affiliated ICP
Sites comply in all material respects at all times with the
standard set forth in Exhibit E. In the event ICP fails to
comply with any material terms of Exhibit E, AOL shall upon
notice to ICP have the right to suspend the Promotion
immediately and if such non-compliance continues for more than
[*****] days beyond AOL's written notice to ICP of such
non-compliance, AOL will have the right (as its sole remedy
other than in the event of termination for ICP's breach, which
remedy shall not be affected hereby) to decrease the
Impressions it provides to ICP hereunder on a proportional
basis until such time as ICP corrects its non-compliance (and
in such event, AOL will be relieved of the proportionate amount
of any Impressions Commitment made to ICP by AOL hereunder
corresponding to such decrease in promotion) and any revenue
threshold(s) set forth in Section 4 (and Exhibits K and L
hereto) will each be adjusted proportionately to correspond to
such decrease in the Impressions Commitment. Once ICP has
brought the Affiliated ICP Sites back into compliance with the
material terms of Exhibit E, AOL shall promptly resume the
Promotion. In the event that during the Initial Term the AOL
Properties (or any significant portion thereof) are
non-operational for a total of [*****] over any [*****] day
period (provided that no day shall be counted in more than one
[*****] day period), AOL shall provide ICP, as its sole remedy,
for each such [*****] day period thereafter, with a number of
Impressions equal to one forty-eighth (1/48) of the total
Impressions to be provided during the Initial Term; provided,
however, that if the AOL Properties (or any significant portion
thereof) are non-operational for more than [*****] hours (but
not including normally scheduled upgrades and maintenance
activities) in any [*****] day period, ICP shall be entitled to
terminate this Agreement for material breach.
2.10 ADVERTISING SALES.
2.10.1 AFFILIATED ICP SITES. AOL shall have the exclusive right
and obligation to license or sell promotions,
advertisements, links, pointers or similar services or
rights ("Advertisements") on or through the Affiliated
ICP Sites, in its reasonable discretion. The specific
advertising inventory within the Affiliated ICP Sites
will be as reasonably determined by AOL; PROVIDED,
HOWEVER, that AOL shall not sell or license anywhere
within the Career Areas any such Advertisements to any,
nor shall any such Advertisements promote, (i)
recruiting verticals (e.g., "xxxxxxxxxxxxxx.xxx"), (ii)
newspaper classifieds (but Advertisements may promote
single classified verticals (e.g., cars), so long as the
user cannot navigate to other classified areas), (iii)
ICP Competitors or (iv) other categories of advertisers
of whom ICP notifies AOL in writing; provided, however,
that (a) any new categories added pursuant to this
Section 2.10.1(iv) shall not affect then existing AOL
contractual commitments and (b) in the event that AOL
reasonably believes that the addition of new categories
has materially limited AOL's ability to meet its
obligations under this Section 2.10.1, AOL may refer the
issue to the Management Committee for resolution.
2.10.2 PRINCIPAL ICP INTERACTIVE SITE. As soon as reasonably
practical following the Effective Date, the Parties will
mutually agree upon an annual operating plan (the "Ad
Program") whereby both AOL and ICP will, in coordination
with each other, establish banner advertising inventory
space within the Principal ICP Interactive
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Site, pricing guidelines and revenue projections for the
sale of such inventory space, and objectives for the
sale of such inventory space. The Parties acknowledge
and agree that (unless otherwise agreed by the Parties),
ICP shall be solely responsible for selling or licensing
banner Advertisements to human resources personnel or
HR-related entities, and, in its sole discretion, may
reserve up to [*****] percent ([*****]%) of all other
banner advertising inventory (to be used for ICP
cross-promotions and makegoods, but not offered for sale
by ICP to any third party). (AOL shall receive no
revenue share from any Advertisement sold, licensed or
used by ICP.) AOL shall be solely responsible for
selling or licensing the balance of the banner
advertising inventory to all other third parties. In the
event that AOL shall fail to sell at least [*****]
percent ([*****]%) of the advertising inventory in the
Principal ICP Interactive Site during any nine-month
period, the Parties shall discuss measures by which AOL
shall be able to sell more advertising inventory (the
"Advertising Enhancement Discussions"). If (i) the
Parties are unable to agree, within thirty (30) days) as
to measures by which AOL, can attempt to improve its
advertising sales on the Principal ICP Interactive Site
or (ii) AOL fails to sell at least [*****] percent
([*****]%) of the advertising inventory in the Principal
ICP Interactive Site within sixty (60) days following
such Advertising Enhancement Discussions, ICP shall
have the right to sell all of (or, to the extent
agreed upon by the Parties, a portion of) the
advertising inventory formerly sold by AOL on such
Site, AOL shall cease selling the relevant
advertising inventory agreed upon by the Parties, and
AOL shall receive a mutually agreed-upon revenue
share for the advertising inventory (if any) which
continues to be sold by AOL during the remainder of
the Term. AOL shall not sell any placement for banner
advertising extending beyond the term of this
Agreement.
2.10.3 INCLUSION OF ICP SALES FORCE IN PITCHES. Where feasible
and commercially reasonable, AOL and ICP shall work
together to include members of the ICP sales force in
advertising sales pitches to third parties.
2.10.4 ADVERTISING CONTENT. The content of the Advertisements
sold by AOL pursuant to this Section 2.10, whether on or
through the Affiliated ICP Sites or the Principal ICP
Interactive Site, shall not include any unlawful or
reasonably objectionable material (including without
limitation any pornographic, defamatory, racist, sexist
or salacious matter).
2.11 TRAFFIC FLOW; MEMBER ODD JOBS. ICP will use commercially
reasonable efforts to ensure that AOL traffic is either kept
within the Affiliated ICP Sites or channeled back into the AOL
Properties (with the exception of advertising links sold and
implemented pursuant to the Agreement and the Content implemented
pursuant to Section 2.6). The Parties will work together on
implementing mutually acceptable, prominent links from the
Affiliated ICP Sites back to (i) AOL Workplace or the main screen
of ClassifiedPlus of the appropriate AOL Property, below the
toolbar on such main screen (or, in the event of any redesign of
such area, in a comparable location) and/or (ii) the "Member Odd
Jobs" area of the AOL Service. In the event that AOL points to any
Affiliated ICP Site or any other ICP Interactive Site or otherwise
delivers traffic to such site hereunder, ICP will ensure that
navigation back to the AOL Properties from such site, whether
through a particular pointer or link, the "back" button on an
Internet browser, the closing of an active window, or any other
return mechanism, shall not be interrupted by ICP through the use
of any intermediate screen or other device not specifically
requested by the user, including without limitation through the
use of any html pop-up window or any other similar device.
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2.12 PRODUCTION AND TECHNOLOGY. To the extent set forth in the
Programming Plan, ICP shall use commercially reasonable efforts
(i) to customize specific features for AOL Users and (ii) to
integrate ICP job listings into the main screens of
ClassifiedPlus. During the Term, the Parties shall mutually agree
to a regular editorial calendar and shall consult each other
regarding routine editorial issues.
2.13 CUSTOMIZATION OF AFFILIATED ICP SITES AND ICP RATINGS CREDIT. Each
Affiliated ICP Site shall contain "headers" and "footers" (as
further reflected in the Programming Plan) provided by AOL that
will include co-branding for, and links back to, the appropriate
AOL Property (e.g., in the event that the relevant AOL User comes
to the relevant Affiliated ICP Site from the CompuServe Service,
such Affiliated ICP Site shall contain CompuServe Service
co-branding (in form and substance satisfactory to AOL) and shall
provide navigational links back to the ClassifiedPlus area of the
CompuServe Service or the Workplace Area of the AOL Service, as
applicable). At ICP's election, each Affiliated ICP Site and
[*****] on the AOL Properties shall be located on a URL
provided by [*****] and/or the URL for the applicable AOL Property
(e.g., xxx.xxxxxxx.xxx.xxx, xxx.xxxxxxx.xxxxxxxxxx.xxx,
xxx.xxx.xxxxxxx.xxx, xxx.xxxxxxxxxx.xxxxxxx.xxx, etc.); provided,
however, that upon Media Metrix's public announcement of the
availability of a syndicated report, the Parties will reconsider
in good-faith the selection of such URLs. The purpose of such
reconsideration shall be to endeavor to obtain for both Parties
credit for user traffic (but in no event shall such
reconsideration result in ICP receiving less credit for traffic,
page views, unique visits or reach). [*****]
2.14 ENTERPRISE AND COMMERCE SOLUTIONS/TOOLS. AOL and ICP shall explore
in good faith the potential for AOL to supply back-end commerce
solutions to ICP through AOL's alliance with Sun Microsystems and
and/or Netscape Communications Corporation, provided that such
solutions are determined by ICP to be superior to solutions used
or contemplated to be used by ICP.
2.15 USE OF COMPONENT PRODUCTS.
2.15.1 AFFILIATED ICP SITES. In the event that ICP elects to
use or integrate any tools or functionality (other than
tools owned by ICP or existing solutions) similar to any
AOL Component Products into any Affiliated ICP Site(s),
ICP shall use or integrate into such Affiliated ICP
Site(s) the relevant AOL Component Products to the
extent that such products are comparable (in terms of
cost and performance) to similar component products
offered by any third parties and to the extent that the
transition costs (but not the cost of the AOL Component
Product) are minimal. AOL shall provide AOL Component
Products at a price no less favorable than the price
offered to its other Interactive Content Partners and
Marketing Partners.
2.15.2 PRINCIPAL ICP INTERACTIVE SITE. In the event that after
the Effective Date ICP elects to use or integrate any
such tools or functionality (other than tools owned by
ICP or existing solutions) into the Principal ICP
Interactive Site, ICP shall use or integrate the
relevant AOL Component Products to the extent that such
products are comparable (in terms of cost and
performance) to similar component products offered by
any third parties and to the extent that the transition
costs (but not the cost of the AOL Component Product)
are minimal. AOL shall provide
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AOL Component Products at a price no less favorable than
the price offered to its other Interactive Content
Partners and Marketing Partners.
2.16 LAUNCH OF AFFILIATED ICP SITES. ICP shall launch the Affiliated
ICP Site associated with the Workplace and ClassifiedPlus areas
within the AOL Service within [*****] days of the Effective
Date and other Affiliated ICP Sites within [*****] days after
the Effective Date. AOL shall without charge provide ICP with
reasonable assistance to aid in the launch of the Affiliated ICP
Sites. To the extent that the launch of any Affiliated ICP Site
is delayed due to AOL's actions or inaction, the aforesaid launch
dates shall be extended by the period of such delay.
2.17 ClassifiedPlus; JOBS DATABASE.
2.17.1 LINKS. Any individual ICP classifieds listing on any
Results Screen may link to a more detailed description
of such listing. Any First Level Detail Screen may link
to an even more detailed description (a "Second Level
Detail Screen"). All Search Screens, Results Screens and
First Level Detail Screens shall be within the AOL
Properties, hosted and produced by AOL. Each Second
Level Detail Screen shall be within the Affiliated ICP
Site hosted and produced by ICP at ICP's expense,
subject to the terms hereof. Each First Level Detail
Screen for ICP classifieds listings may include three
active links to any page within the Affiliated ICP Site
reasonably designated by ICP and two static (i.e.,
images that are not links) graphic images (one picture,
one logo). Creative materials for such links and graphic
images shall be provided to AOL by ICP under the terms
of this Agreement.
2.17.2 MODIFICATIONS. AOL reserves the right to redesign or
modify the organization, structure, "look and feel,"
navigation and other elements of ClassifiedPlus, at any
time, and will have full and ongoing final approval in
its discretion of the design, layout, look and feel,
content (but not Content provided by ICP hereunder),
advertising inventory, commerce inventory, user
interface, functionalities and all other aspects of
ClassifiedPlus. Without limiting the foregoing, AOL in
consultation with ICP: (i) shall have the right to make
material alterations to ClassifiedPlus, (ii) may promote
other areas of the AOL Properties in ClassifiedPlus,
including via links and banners, and (iii) shall own and
control all rights to third party advertising and sales
relationships with commercial and individual listings
sources to ClassifiedPlus, subject to the restrictions
on advertising sales specified in Section 2.10.1. In the
event any modifications to the AOL Properties materially
and adversely affect any specific ICP promotion herein,
AOL will provide ICP with comparable promotional
placements as reasonably determined by the Parties.
Notwithstanding the foregoing, AOL shall (i) have no
right to influence over, or to request changes in, the
structure of ICP's databases; and (ii) have no right,
title or interest in all or any portion of ICP's
databases.
2.17.3 JOBS DATABASE. ICP shall deliver the Jobs Database in an
electronic format or formats as specified by AOL from
time to time for the sole purpose of including such Jobs
Database in ClassifiedPlus, and ICP shall update such
Jobs Database daily. AOL may display the Database and/or
individual ICP classified listings within the Database
in ClassifiedPlus in AOL's discretion, provided that AOL
shall not alter or delete specific job postings. Unless
otherwise mutually agreed by the Parties, AOL shall not
co-mingle ICP's Jobs Database with other classified
listings of other parties or AOL. ICP shall provide all
reasonable assistance to ensure that the integration of
the Jobs Database into ClassifiedPlus is error-free.
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2.17.4 OWNERSHIP OF ClassifiedPlus. Subject to Section 2.21
hereof, AOL owns and shall own, whether now or hereafter
created or existing, all title and other rights to the
ClassifiedPlus area, including without limitation the
look and feel thereof, all search engines, user
interfaces, any technology used therein, any brand names
or other intellectual property relating thereto, any
derivative works thereto, and all documentation related
thereto created by AOL, but specifically excluding the
Jobs Database (which shall remain the exclusive property
of ICP).
2.18 CORPORATE HUMAN RESOURCES SERVICES. AOL shall have the right to
receive ICP's corporate human resources services at a discount of
at least fifty percent (50%) of ICP's standard rates for services
exclusively provided by ICP.
2.19 LICENSE. During the Term, ICP hereby grants to AOL, solely for the
purpose of, and only to the extent necessary for, AOL's
performance under this Agreement, a non-exclusive, royalty-free,
worldwide license to market, distribute, display, perform,
transmit and promote the Content provided by ICP hereunder
(collectively, the "Licensed Content") (or any portion thereof)
through the AOL Properties and the ICP Affiliated Sites. In
addition, users of the AOL Properties will have the right to
access and use the Affiliated ICP Sites.
2.20 PERFORMANCE/QUALITY CRITERIA. The Parties mutually intend to
create on the AOL Properties and the Affiliated ICP Sites a
superior career resource for AOL Users. To ensure that the quality
of the career resources provided by ICP will be maintained, ICP
commits that it will be at all times during the Initial Term in
the top [*****] of all online career search Interactive Sites
(but the Career Areas shall not constitute an online career search
Interactive Site separate and apart from ICP) as measured by a
cross-section of third party reviewers who are recognized
authorities in such industry as selected by the Management
Committee. ICP's failure to bring the Affiliated ICP Sites into
compliance with the quality standards set forth in this Section
within [*****] days shall constitute a material breach of this
Agreement; provided, however, that if ICP is unable to remedy such
breach within the cure period set forth in Section 5.4 of the
Agreement, AOL's sole remedy for such breach shall be termination
of this Agreement.
2.21 OWNERSHIP OF ICP-SUPPLIED CONTENT.
ICP exclusively owns and shall own, whether now or hereafter
created or existing, all right, title and interest in and to
Content supplied or offered hereunder by ICP (including without
limitation job listings, resumes, profiles, databases, etc.) and
all intellectual property rights therein (including without
limitation copyrights and other rights of authorship, patents,
trademarks and trade secrets) and AOL agrees that all such Content
and rights owned by ICP shall remain the sole and exclusive
property of ICP.
3. ICP EXCLUSIVE STATUS.
3.1. EXCLUSIVE STATUS. During the Initial Term, ICP shall be the
exclusive provider on the AOL Properties and the Affiliated ICP
Sites of (i) jobs listings, jobs posting, jobs databases and
jobs searching (including job agent and job alert emails), but
not of non-aggregated advertising for specific employers on
Digital City, (ii) resume builder tools, resume postings and
resume databases, (iii) executive search, selection and
outplacement, (iv) independent contractor profiles, (v) Project
Profiles, (vi) temporary employment services, and (vii) Talent
Market (collectively, the "Exclusive Services"). AOL shall not
promote on the AOL Properties services or products of any other
party which are equivalent to the Exclusive Services.
3.2. EXCEPTIONS. No provision of this Agreement will limit AOL's
ability to:
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(i) [*****]
(ii) [*****]
(iii) [*****]
(iv) [*****]
(v) [*****]
(vi) [*****]
(vii) [*****]
(viii) [*****]
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4. PAYMENTS.
4.1. PAYMENT. Subject to the terms of this Agreement, ICP will pay AOL
a payment of One Hundred Four Million Dollars ($100,000,000),
payable as follows:
(i) [*****]
(ii) [*****]
(iii) [*****]
4.2. SHARING OF ADVERTISING REVENUES. The Parties will share
Advertising Revenues as follows: (i) in connection with the sale
or licensing of any Advertisement on any Affiliated ICP Site, AOL
shall pay ICP [*****] percent ([*****]%) of the Advertising
Revenues generated by any such sale or licensing and (ii) in
connection with the sale or licensing of any banner Advertisement
on or through the Principal ICP Interactive Site, the selling
party shall pay the non-selling party the percentages of the
Advertising Revenues generated by any such sale or licensing set
forth on Exhibit K hereto. AOL, however, shall not be entitled to
any revenue share for advertisements sold by ICP on the Principal
ICP Interactive Site to the extent permitted under Section 2.10.2
of this Agreement. Each Party will pay the other Party all
Advertising Revenues received and owed to such other Party as
described herein on a quarterly basis within thirty (30) days
following the end of the quarter in which such amounts were
generated by such Party.
4.3. SHARING OF JOB LISTING REVENUES; BOUNTIES. AOL shall receive the
share of Job Listing Revenues set forth on Exhibit L, as well as
the Resume Acquisition Bounties, Personal Alert Profile
Acquisition Bounties and Virtual Career Fair Fees (if any)
specified in Exhibit L, all subject to the hurdles set forth (and
as defined) therein. ICP will pay AOL its share of the Job Listing
Revenues and the Bounties owed to AOL as described on Exhibit L on
a quarterly basis within thirty (30) days following the end of the
quarter in which such Job Listing Revenues and Bounties were
generated.
4.4. LATE PAYMENTS; WIRED PAYMENTS. 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. All
payments required hereunder will be paid in immediately available,
non-refundable U.S. funds wired to (i) in the case of payments to
AOL, the "America Online" account, Account Number 323070752 at The
Chase Manhattan Bank, 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000
(ABA: 000000000), or (ii) in the case of payments to ICP, the "TMP
Worldwide Inc." account, Account Number 00000000 at the Fifth
Third Bank, Cincinnati, Ohio (ABA: 000000000).
4.5. AUDITING RIGHTS. Each Party will maintain complete, clear and
accurate records of all revenues and fees in connection with the
performance of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each Party will have the right,
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exercisable not more than once every twelve (12) months, to
appoint an independent certified public accountant to conduct a
reasonable and necessary inspection of portions of the books and
records of the other Party which are relevant to the payment of
amounts payable pursuant to this Agreement. Any such audit may be
conducted after twenty (20) business days prior written notice.
The Party initiating the audit shall bear the expense of any audit
conducted pursuant to this Section 4.5 unless such audit shows an
error in the other Party's favor amounting to a deficiency in
excess of five percent (5%) of the actual amounts paid and/or
payable hereunder, in which event the Party being audited shall
bear the reasonable expenses of the audit. The Party being audited
shall pay the other Party the amount of any deficiency discovered
by the audit within thirty (30) days after receipt of written
notice thereof.
4.6. TAXES. ICP will collect and pay and indemnify and hold AOL
harmless from any sales, use, excise or similar tax including any
penalties and interest, as well as any costs associated with the
collection or withholding thereof, including attorney's fees which
arises out of (1) the sale by ICP of tangible personal property or
any taxable service (including but not limited to advertising) to
AOL, or (2) any transaction between ICP and customers other than
AOL. AOL will collect and pay and indemnify and hold ICP harmless
from any sales, use, excise, internet access, telecommunication or
any other similar tax or fee solely to the extent arising out of
AOL's performance hereunder including any penalties and interest,
as well as any costs associated with the collection or withholding
thereof, including attorney's fees which arises in connection with
actions taken, or transactions engaged in, by AOL other than those
taxes that directly relate to (1) the sale by ICP of tangible
personal property or any taxable service to AOL, or (2) any
transaction between ICP and its customers other than AOL.
4.7. REPORTS.
4.7.1. TRANSACTION REPORTS. ICP will provide AOL in an
automated manner with a monthly report in an
AOL-designated format detailing the following activity
in such period (and any other information mutually
agreed upon by the Parties or reasonably required for
measuring revenue activity by ICP through the Affiliated
ICP Sites): summary transaction information by day
(e.g., revenues from customers and partners, number of
job listings, number of resume listings, repeat usage
percentages, etc.) (collectively, "Transaction
Reports"). AOL shall without charge provide reasonable
assistance to ICP in designing and implementing the
Transaction Reports. AOL will be entitled to use the
Transaction Reports in its business operations, subject
to the terms of this Agreement. More generally, each
payment to be made by ICP 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 (ii) any
applicable Advertising Revenues. AOL acknowledges that
such reports may contain ICP's Confidential Information
as defined herein.
4.7.2. USAGE REPORTS. AOL shall provide ICP on a monthly basis
with standard usage information related to the
Promotions (e.g., a schedule of the Impressions
delivered by AOL at such time, numbers of click
throughs, etc.) which is similar in substance and form
to the reports provided by AOL to other interactive
marketing partners similar to ICP. ICP acknowledges that
such information may be Confidential Information as
defined herein. Subject to the terms of this Agreement,
ICP shall be entitled to use such reports in its
internal business operations, and if ICP believes that
it has legitimate business reasons to disclose such
information to a third party, AOL will consider any
request for such third party disclosure in good faith
and its consent shall not be unreasonably withheld.
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4.7.3. FRAUDULENT TRANSACTIONS. To the extent permitted by
applicable laws, ICP will provide AOL with a prompt
report of any fraudulent order, including the date,
screenname or email address and amount associated with
such order, promptly following ICP obtaining knowledge
that the order is, in fact, fraudulent.
4.8 ALTERNATIVE REVENUE STREAMS. In the event that ICP receives or
desires to receive (directly or indirectly) any compensation in
connection with any Affiliated ICP Sites other than with respect
to (i) the Products set forth on Exhibit D hereof or (ii)
Advertising Revenues (an "Alternative Revenue Stream"), ICP shall
promptly inform AOL in writing and request AOL's approval, which
approval shall not be unreasonably withheld, but may be
conditioned upon the negotiation of an acceptable revenue sharing
relationship (including appropriate hurdles) between the Parties.
5. TERM; RENEWAL; TERMINATION.
5.1. TERM. Unless earlier terminated as set forth herein, the initial
term of this Agreement will be four (4) years from the Effective
Date (the "Initial Term").
5.2. RENEWAL. Upon conclusion of the Initial Term, AOL will have the
right to renew the Agreement for two (2) successive one-year
renewal terms (each a "Renewal Term" and together with the Initial
Term, the "Term"). During any such Renewal Term: (i) ICP will not
be required to pay any fixed payments specified in Section 4.1 or
perform the cross-promotional obligations specified in Section 1;
(ii) AOL will not be required to undertake any fixed exclusivity
or promotional/placement obligations; and (iii) AOL shall have the
right to receive the Bounties and revenue share payments
referenced in Section 4.3 hereof, without regard to any
performance hurdles set forth therein. A Renewal Term shall
automatically commence following the expiration of the Initial
Term (or prior Renewal Term, as the case may be), provided that
AOL shall be entitled to terminate any such Renewal Term with
ninety (90) days prior written notice to ICP. Notwithstanding the
foregoing, ICP may terminate this Agreement on thirty (30) days
prior written notice to AOL in the event that AOL acquires or
forms or is acquired by an ICP Competitor during any Renewal Term.
5.3. CONTINUED LINKS; WIND-DOWN.
5.3.1. CONTINUED LINKS. Upon expiration of the Term, AOL may,
in its discretion, continue to promote one or more
"pointers" or links from the AOL Properties to the
Principal ICP Interactive Site and continue to use ICP's
trade names, trade marks and service marks in connection
therewith (collectively, a "Continued Link"). With
respect to only the first year after the expiration of
the Term, and provided that AOL maintains a Continued
Link during such period, (a) ICP shall pay AOL the share
of Job Listing Revenues required pursuant to Section 4.3
hereof (but no other payments described in Section 4.3),
without regard to any performance hurdles set forth
therein, and (b) Sections 4.5, 4.6 and 4.7 shall
continue to apply with respect to the Continued Link and
any transactions arising therefrom.
5.3.2. WIND-DOWN. Upon expiration of the Term, AOL Users shall
have the right to access any of the features of the
Affiliated ICP Site which shall be transferred to the
Principal ICP Interactive Site (including, without
limitation, any resume builder product or any other
employment-related services (e.g., auction services,
temporary employment services, etc.)), and AOL Users
shall have the right to access, update and/or remove
their resumes from relevant ICP databases.
Notwithstanding any provision of this Agreement to the
contrary, ICP shall be entitled to maintain and use on
an exclusive basis AOL Keywords: Monster and
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Xxxxxxx.xxx for a two (2) year period following the
expiration of the Term and such keyword shall link to
such ICP Interactive Site as ICP shall designate.
5.4. TERMINATION FOR BREACH. Except as expressly provided elsewhere in
this Agreement, either Party may terminate this Agreement
including 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 the cure period with respect to any scheduled
payment will be fifteen (15) days from the date of notice of
non-payment. 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 30 days, either
Party may terminate this Agreement if the breach remains uncured
for such shorter period after written notice thereof to the other
Party. Notwithstanding the foregoing, the Parties agree that this
Agreement shall not terminate during any period during which the
Parties retain a third party mediator in accordance with Section
6.1. In the event that either Party shall terminate this Agreement
during the Initial Term pursuant to this Section 5.4, ICP shall
have no obligation to make further payments hereunder and AOL
shall pay ICP a pro rata refund of the payments theretofore made
by ICP pursuant to Section 4.1 calculated in accordance with the
Pro Rata Refund Formula; provided, however, that AOL shall have no
obligation to pay ICP a pro rata refund in the event that AOL
terminates this Agreement as a result of ICP's failure to make
payments due hereunder (an "ICP Nonpayment Termination").In the
event that AOL is awarded damages against ICP in connection with
an ICP Nonpayment Termination, ICP shall have the right to
decrease the amount of such damages by the Offset Amount;
provided, however, that ICP shall in no event be entitled to, or
have any interest in the Offset Amount, except to satisfy
(partially or in full, as the case may be) such damages awarded to
AOL. For the purposes of this Agreement, the "Offset Amount" shall
mean, upon an ICP Nonpayment Termination, the amount equal to the
difference between (a) the total amount paid by ICP to AOL
pursuant to Section 4.1 of this Agreement as of the date of such
ICP Nonpayment Termination and (b) the product of $100,000,000
multiplied by a fraction the numerator of which shall be the total
number of days elapsed in the Initial term and the denominator of
which shall be 1461.
5.5. TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may terminate
this Agreement 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.
5.6. TERMINATION ON CHANGE OF CONTROL. In the event of (i) a Change of
Control of ICP resulting in control of ICP by an Interactive
Service, AOL may terminate this Agreement within thirty (30) days
after such Change of Control; (ii) a Change of Control of AOL
resulting in control of AOL by an ICP Competitor, ICP may
terminate this Agreement; or (iii) a Change of Control of AOL, AOL
or ICP may terminate this Agreement by providing forty five (45)
days prior written notice of such intent to terminate, but such
notice must be given within thirty (30) days after such Change of
Control. In the event that AOL shall terminate this Agreement
pursuant to this Section 5.6, ICP shall have no obligation to make
further payments hereunder and AOL shall pay ICP a pro rata refund
of the payments theretofore made pursuant to Section 4.1,
calculated in accordance with the Pro Rata Refund Formula.
5.7. 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,
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advertising, or other promotional materials, including Press
Releases, related to the Affiliated ICP Sites and/or referencing
the other Party and/or its trade names, trademarks, and service
marks (the "Promotional Materials"); provided, however, that
either Party's use of screen shots of any Affiliated ICP Site for
promotional purposes will not require the approval of the other
Party so long as America Online-Registered Trademark- is clearly
identified as the source of such screen shots; and provided
further, however, that, following the initial public announcement
of the business relationship between the Parties in accordance
with the approval and other requirements contained herein, either
Party's subsequent factual reference to the existence of a
business relationship between the Parties in Promotional
Materials, will not require the approval of the other Party. Each
Party will solicit and reasonably consider the views of the other
Party in designing and implementing such Promotional Materials.
Once approved, the Promotional Materials may be used by a Party
and its affiliates for the purpose of promoting any such
Affiliated ICP 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 Promotional Materials may be depleted. In the
event that either Party issues a press release or other
promotional material in contravention of the requirements of this
Section 5.7, at the demand of the other Party, such Party shall
issue within forty eight (48) hours of demand therefor an equally
prominent (as reasonably determined by the other Party) press
release retracting the previous press release or other
promotional material, as the case may be.
6. MANAGEMENT COMMITTEE; JURISDICTION.
6.1. MANAGEMENT COMMITTEE. The Parties will act in good faith and use
commercially reasonable efforts to promptly resolve any claim,
dispute, claim, controversy or disagreement (each a "Dispute")
between the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under or related to this
Agreement or any document executed pursuant to this Agreement or
any of the transactions contemplated hereby. If the Parties cannot
resolve the Dispute within such time frame, the Dispute will be
submitted to the Management Committee for resolution. For ten (10)
days following submission of the Dispute to the Management
Committee, the Management Committee will have the exclusive right
to resolve such Dispute; provided further that the Management
Committee will have the final and exclusive right to resolve
Disputes arising from any provision of the Agreement which
expressly or implicitly provides for the Parties to reach mutual
agreement as to certain terms. If the Management Committee is
unable to amicably resolve the Dispute during the ten-day period,
then the Management Committee will consider in good faith the
possibility of retaining a third party mediator to facilitate
resolution of the Dispute (except that mediation is mandatory if
required pursuant to Section 1.1 of this Agreement). In the event
the Management Committee elects not to retain a mediator, the
dispute will be subject to resolution by litigation. "Management
Committee" will mean a committee made up of a senior executive
from each of the Parties for the purpose of resolving Disputes
under this Section 6 and generally overseeing the relationship
between the Parties contemplated by this Agreement. Neither Party
will seek, nor will be entitled to seek, binding outside
resolution of the Dispute unless and until the Parties have been
unable amicably to resolve the Dispute as set forth in this
Section 6.
6.2. CHOICE OF LAW; JURISDICTION. Any Dispute that is not finally
resolved by the Management Committee (collectively, "Claims") will
be resolved in a court of competent jurisdiction in either the
State of Delaware. Each Party irrevocably consents to the
exclusive jurisdiction of the courts of the State of Delaware and
the federal courts situated in those
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states over any and all Claims and any and all actions to enforce
such claims or to recover damages or other relief in connection
with such Claims. Each Party will pay the fees of its own
attorneys, expenses of witnesses and all other expenses and costs
in connection with the presentation of such Party's case
(collectively, "Attorneys' Fees").
7. EFFECT ON NETCENTER SERVICES AGREEMENT. This Agreement supersedes in its
entirety that certain Netcenter Services Agreement dated as of April
29,1998 by and between Netscape Communications Corporation and ICP
(collectively, the "NSA"), and the NSA is hereby expressly terminated and
shall be of no further force and effect. ICP shall receive a prorated
credit hereunder for any amounts which have been paid but unaccrued under
the NSA, which shall be credited against the payment to be made pursuant to
Section 4.1(ii).
8. EFFECT ON ASSIGNMENT AGREEMENT. This Agreement supersedes in its entirety
that certain Assignment Agreement dated as of June 1,1998 by and between
AOL, ICP and i Village, Inc., a Delaware corporation (the "AA"), and the AA
is hereby expressly terminated and shall be of no further force and effect.
The Parties agree that no amounts shall be payable under the AA as of the
date hereof or in the future.
9. STANDARD TERMS. The Standard Online Commerce Terms & Conditions set forth
on 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.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. TMP INTERACTIVE, INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxx
-------------------------------- ----------------------------
Name Name:
Title: President - Business Affairs Title: President
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EXHIBIT A
PLACEMENT/PROMOTION
I. CARRIAGE PLAN - SEE ATTACHED
II. SEARCH TERMS
A. During the Term, subject to the terms and conditions hereof, ICP
shall have the exclusive right to use the following Keyword Search Terms:
Xxxxxxx.xxx and Monster (the "ICP Keywords"). The ICP Keywords shall point
directly to a co-branded first screen on the Affiliated ICP Site.
B. During the Term, the generic search terms job, jobs, employment,
self-employment, career, careers, help wanted, executive search, free agent,
free agents, resumes and independent professional (collectively, the Generic
Keyword Search Terms") will point to career-related areas that contain ICP
placements or Content within the AOL Properties, to be determined by AOL in its
reasonable discretion upon consultation with ICP (the "Generic Search Term
Right"), PROVIDED that the ICP placements or Content shall appear prominently on
such page, subject to the Programming Plan. In the event that any AOL Property
does not have a Career Area, the Generic Keyword Search Terms on such AOL
Property shall point to the appropriate Affiliated ICP Site or, if none, to the
Principal ICP Interactive Site.
C. Notwithstanding the foregoing, the delivery of the Generic Search
Terms and the ICP Keywords shall be subject to compliance by ICP with its
material obligations set forth in this Agreement, including, without limitation,
the obligations set forth on Exhibit C to this Agreement. In the event that any
third party reasonably claims any proprietary right in any of the Generic Search
Terms, AOL shall have the right to immediately terminate the Generic Search Term
Right.
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CARRIAGE PLAN:
INTEGRATED IMPRESSIONS AND PERMANENT
PLACEMENTS
AOL SERVICE START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Teen Career Decision Guide Special 12/10/99 12/9/03
Offer Button on Overview Pages (AOL [*****] [*****] [*****] [*****] [*****]
Service only) (permanent)
Permanent Contextual Promotion in "My 12/10/99 12/9/03
AOL" Interests Tab [*****] [*****] [*****] [*****] [*****]
Careers Newsletter (1X per month) 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Workplace Job Search Screen (permanent) 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Workplace Job Search Results 12/10/99 12/9/03
(permanent) [*****] [*****] [*****] [*****] [*****]
TBD Content Integration (permanent) 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Workplace Professions (permanent) 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Workplace Job Search & Job Alerts on 12/10/99 12/9/03
Main Screen (permanent) [*****] [*****] [*****] [*****] [*****]
Workplace - Post a Resume (permanent) 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
XXX.xxx START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Int. Branded Placements on Careers 12/10/99 12/9/03
Webcenter Main and Jobs Dept. (perm.) [*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
DCI START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Jobs & Careers - City Main Page - 12/10/99 12/9/03
Monster Search, Post & Agent Promo [*****] [*****] [*****] [*****] [*****]
Jobs & Careers - Jobs Postings - Non 12/10/99 12/9/03
clickable Logo [*****] [*****] [*****] [*****] [*****]
Jobs & Careers - Jobs Listing Search 12/10/99 12/9/03
Agent - Rotating Text [*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
NETSCAPE NETCENTER START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Career Center Main Page - Career 12/10/99 12/9/03
Toolkit (permanent) [*****] [*****] [*****] [*****] [*****]
Career Center Job Search Results 12/10/99 12/9/03
(permanent) [*****] [*****] [*****] [*****] [*****]
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====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
ICQ START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Registration Center Listing - listing 12/10/99 12/9/03
of ICQ Jobs (powered by Monster) in - - - - -
registration center
Contact List Integration - enabling 12/10/99 12/9/03
inbound/outbound functionality for ICQ - - - - -
Jobs (powered by Monster)
Plugins - extending functionalities on 12/10/99 12/9/03
ICQ specific to ICQ Jobs (powered by - - - - -
Monster)
Viral Marketing/Propagation - enabling 12/10/99 12/9/03
ICQ users to send ICQ Jobs (powered by - - - - -
Monster) to each other
Scrolling News Ticker - content 12/10/99 12/9/03
programming of multiple channels by - - - - -
Monster
Content Integration - Monster content 12/10/99 12/9/03
integrated into ICQ Portal Jobs and - - - - -
Careers Channel
====================================================================================================================================
0 0 0 0
-
COMPUSERVE START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Premiere Aggregator Placement in the 12/10/99 12/9/03
Career Center on CS and XX.xxx: [*****] [*****] [*****] [*****] [*****]
Branded (permanent)
Premiere Positioning on CS and XX.xxx 12/10/99 12/9/03
Web Centers in the Research and [*****] [*****] [*****] [*****] [*****]
Education Center (permanent)
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
INTERNATIONAL START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
AOL Canada Workplace Mainscreen
XXX.XX - Careers channel
Xxxxxxxx.XX Careers area
====================================================================================================================================
0 0 0 0
-
CROSS BRAND PRODUCTS START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Classifieds Plus Employment Main 12/10/99 12/9/03
Screen (permanent) [*****] [*****] [*****] [*****] [*****]
Classifieds Job Search Screen 12/10/99 12/9/03
(permanent) [*****] [*****] [*****] [*****] [*****]
Classifieds Job Results Screen 12/10/99 12/9/03
(permanent) [*****] [*****] [*****] [*****] [*****]
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Classifieds Post a Resume Screen 12/10/99 12/9/03
(permanent) [*****] [*****] [*****] [*****] [*****]
Career Decision Guide Anchor Tenant on 12/10/99 12/9/03
Main and Results Pages (Across All [*****] [*****] [*****] [*****] [*****]
Brands) (permanent)
Career Decision Guide Special Offer 12/10/99 12/9/03
Button on Overview Pages (Across All [*****] [*****] [*****] [*****] [*****]
Brands) (permanent)
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
TOTALS [*****] [*****] [*****] [*****] [*****]
BANNER IMPRESSIONS
AOL SERVICE START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Business News Feeds Banners 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Personal Finance ROS Banners 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
News ROS Banners 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Teens ROS Banners 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Email ROS 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
XXX.XXX START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
My News - Run of Entertainment News 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
My News - Run of Sports 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
My News - Run of Top News 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Search 2000 - Terms TBD 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
AIM 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
DCI START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
DCI ROS Banners 12/10/99 234X60
[*****] [*****] [*****] [*****] [*****]
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DCI ROS Text DCI ROS Text
Text [*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
NETSCAPE NETCENTER START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Business Main Page Text Links 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Personal Finance Main Page Banners 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Personal Finance Main Page Text Links 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Personal Finance ROS Banners 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Personal Finance ROS Text Links 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
NSCP Homepage 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
ICQ START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Ads (banner, text promos, wingdings, 12/10/99 12/9/03
teasers, related links) in ICQ Portal [*****] [*****] [*****] [*****] [*****]
Channels
Targeted ICQ Search Results (Search 12/10/99 12/9/03
Terms TBD) [*****] [*****] [*****] [*****] [*****]
Targeted co-Browsing Ads (URLs TBD) 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Targeted Web Directory Categories 12/10/99 12/9/03
(Areas/Topics TBD) [*****] [*****] [*****] [*****] [*****]
Portal Channel "What's Related" Links 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Portal Channel Community Links 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Broad Reach 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
COMPUSERVE START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Communications Mindset Package Banners 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Business and Professional Mindset 12/10/99 12/9/03
Package Banners [*****] [*****] [*****] [*****] [*****]
Compuserve Main Menu Placements 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
TBD Mindset Package Banners 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
Branded Positioning on XX.xxx Main 12/10/99 12/9/03
Menu Search Box (permanent) [*****] [*****] [*****] [*****] [*****]
What's New! Scrolling Ticker 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
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====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
INTERNATIONAL START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
AOL Canada ROS 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
PARTNER START END IMPS/Y1 IMPS/Y2 IMPS/Y3 IMPS/Y4 IMPS
--------------------------------------------------------------------------------------------
Xxxxxxx.xxx ROS Banners 12/10/99 12/9/03
[*****] [*****] [*****] [*****] [*****]
====================================================================================================================================
[*****] [*****] [*****] [*****] [*****]
TOTALS [*****] [*****] [*****] [*****] [*****]
Grand Total
[*****] [*****] [*****] [*****] [*****]
Key:
Imps = Impressions
Y1 = Year 1
Y2 = Year 2
Y3 = Year 3
Y4 = Year 4
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EXHIBIT B
DEFINITIONS
The following definitions will apply to this Agreement:
AA. "AA" shall have the meaning set forth in Section 8 of this Agreement.
ACTION. "Action" shall have the meaning set forth in Section 9.4 of Exhibit G
hereto.
AD PROGRAM. "Ad Program" shall have the meaning set forth in Section 2.10.2 of
this Agreement.
ADVERTISEMENTS. "Advertisements" shall have the meaning set forth in Section
2.10.1 of this Agreement.
ADVERTISING REVENUES. Aggregate amounts collected plus the fair market value of
any other compensation received (such as barter advertising) by ICP, AOL or
either Party's 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 (i) any Affiliated ICP Site which may be exclusively
available to AOL Users and/or (ii) the Principal ICP Interactive Site. AOL
Advertising Revenues does not include amounts arising from Advertisements on any
screens or forms preceding, framing or otherwise indirectly associated with any
Affiliated ICP Site, which will be sold exclusively by AOL.
AFFILIATED ICP SITES. The specific customized and co-branded areas or web sites
residing on ICP's servers to be promoted and distributed by AOL hereunder
through which ICP can market and complete transactions regarding its Products.
ALTERNATIVE REVENUE STREAM. "Alternative Revenue Stream" shall have the meaning
set forth in Section 4.9 of this Agreement.
AOL CANADA. The standard AOL Canada brand service, which is optimized for
narrow-band distribution (but may, but need not, be accessed through a
broadband platform), specifically excluding (a) XXX.xxx, Netcenter or any
other AOL Interactive Site, (b) the America Online brand service and the
international versions of an America Online service (other than the Canadian
version thereof) (E.G., AOL Japan), (c) the CompuServe-Registered Trademark-
brand service and any other CompuServe products or services (d) "ICQ-TM-,"
"AOL NetFind-TM-," "AOL Instant Messenger-TM-," "Digital City,"
"NetMail-TM-," "Real Fans", "Love@AOL", "Entertainment Asylum," "AOL
Hometown," "My News" or any similar independent product, service or property
which may be offered by, through or with the U.S. version of the America
Online-Registered Trademark- brand service, (e) any programming or Content
area offered by or through the U.S. version of the America Online-Registered
Trademark- brand service over which AOL does not exercise substantially
complete operational control (including, without limitation, Content areas
controlled by other parties and member-created Content areas), (f) any yellow
pages, white pages, classifieds or other search, directory or review services
or Content offered by or through the AOL Canada brand service, (g) any
property, feature, product or service which AOL or its affiliates may acquire
subsequent to the Effective Date and (h) any other version of an America
Online service which, by virtue of its branding, distribution, functionality,
Content or services, including, without limitation, any co-branded version of
the service or any version optimized for any broadband distribution platform
or through any platform or device other than a desktop personal computer, is
materially different from the standard AOL Canada brand service, which is
optimized for narrow-band distribution (but may, but need not, be accessed
through a broadband platform).
AOL COMPONENT PRODUCTS. Chat, buddy list, and/or message board technology,
calendars, review services, voice communications or homesteading products or
services.
AOL EXCLUSIVE OFFERS. "AOL Exclusive Offers" shall have the meaning set forth in
Section 2.6 of this Agreement.
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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 Service, including any sub-accounts
using the AOL Service under an authorized master account.
AOL NETWORK. (i) The AOL Service, (ii) XXX.xxx, (iii) CompuServe, (iv) Digital
City, (v) Netscape Web Site, (vi) ICQ, and (vii) 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). The AOL Network does not include the
Affiliated ICP Sites.
AOL PREMIER PARTNER CATEGORIES. Books (but not career related books), long
distance services, flowers, greeting cards, compact discs (but not career
related compact disks), DVDs and Videos (but not career related DVDs or Videos),
financial services (but not career related financial services) and auctions (but
not including career related auctions such as Talent Market). AOL PROMOS. "AOL
Promos" shall have the meaning set forth in Section A of Exhibit C hereto.
AOL PROPERTIES. The AOL Service, XXX.xxx, the CompuServe Service, the Netscape
Web Site, Digital City, ICQ and AOL Canada. Each of such properties may be
individually referred to herein as an "AOL Property." The AOL Properties do not
include the Affiliated ICP Sites.
AOL SERVICE. The standard U.S. version of the America Online-Registered
Trademark- brand service, which is optimized for narrow-band distribution
(but may, but need not, be accessed through a broadband platform), or its
successor, specifically excluding (a) XXX.xxx, Netcenter or any other AOL
Interactive Site, (b) the international versions of an America Online service
(other than the Canadian version thereof, i.e., AOL Canada) (E.G., AOL
Japan), (c) the CompuServe(R) brand service and any other CompuServe products
or services (d) "ICQ-TM-," "AOL NetFind-TM-," "AOL Instant Messenger-TM-,"
"Digital City," "NetMail-TM-," "Real Fans", "Love@AOL", "Entertainment
Asylum," "AOL Hometown," "My News" or any similar independent product,
service or property which may be offered by, through or with the U.S. version
of the America Online-Registered Trademark- brand service, (e) any
programming or Content area offered by or through the U.S. version of the
America Online-Registered Trademark- brand service over which AOL does not
exercise substantially complete operational control (including, without
limitation, Content areas controlled by other parties and member-created
Content areas), (f) 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-Registered Trademark- brand service, (g)
any property, feature, product or service which AOL or its affiliates may
acquire subsequent to the Effective Date and (h) any other version of an
America Online service which, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any
co-branded version of the service or any version optimized for any broadband
distribution platform or through any platform or device other than a desktop
personal computer, is materially different from the standard U.S. version of
the America Online brand service, which is optimized for narrow-band
distribution (but may, but need not, be accessed through a broadband
platform).
AOL USER. Any user of the AOL Service, XXX.xxx, CompuServe, Digital City,
Netcenter, the AOL Network, or the AOL Properties.
XXX.XXX. AOL's primary Internet-based Interactive Site marketed under the
"AOL.COM-TM-" brand, or any successor thereto specifically excluding (a) the AOL
Service, (b) Netcenter, (c) any international versions of such site (other than
the Canadian version thereof, if any), (d) "ICQ," "AOL NetFind-TM-," "AOL
Instant
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Messenger-TM-," "NetMail-TM-," "AOL Hometown," "My News" or any similar
independent product or service offered by or through such site or any other AOL
Interactive Site, (e) any programming or Content area offered by or through such
site over which AOL does not exercise substantial operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (f) any programming or Content area offered by or
through such site which was operated, maintained or controlled by the former AOL
Studios division (e.g., Electra), (g) any yellow pages, white pages, classifieds
or other search, directory or review services or Content offered by or through
such site or any other AOL Interactive Site, (h) any property, feature, product
or service which AOL or its affiliates may acquire subsequent to the Effective
Date and (i) any other version of an America Online Interactive Site which, by
virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded versions or any version
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer, is materially different from
AOL's primary Internet-based Interactive Site marketed under the "AOL.COM-TM-"
brand.
ATTORNEYS' FEES. "Attorneys' Fees" shall have the meaning set forth in Section
6.2 of this Agreement.
BANNER IMPRESSIONS. Those Impressions so designated on Exhibit A.
BANNER IMPRESSIONS COMMITMENT. "Banner Impressions Commitment" shall have the
meaning set forth in Section 1.2.2 of this Agreement.
BANNER IMPRESSIONS FINAL SHORTFALL. "Banner Impressions Final Shortfall" shall
have the meaning set forth in Section 1.2.2 of this Agreement.
BOUNTIES. "Bounties" shall have the meaning set forth in Section 4.3 of this
Agreement.
CAREER AREAS. The WorkPlace and ClassifiedPlus areas (or any similar or
successor areas thereto) of each of the AOL Service, XXX.xxx, the CompuServe
Service, the Netscape Web Site, ICQ, AOL Canada and Digital City, as well as the
Affiliated ICP Sites.
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 1933,
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.
ClassifiedPlus. The ClassifiedPlus or similar area (or any successor area)
which includes employment and other classified listings (e.g., real estate,
employment, general merchandise) on the AOL Properties.
COMPLEMENTARY PRODUCTS AND SERVICES. Any career related product or service other
than those on Exhibit D, such as payroll processing applications.
COMPUSERVE SERVICE. The standard U.S. version of the CompuServe brand service,
which is optimized for narrow-band distribution (but may, but need not, be
accessed through a broadband platform), or its successor thereto specifically
excluding (a) any international versions of such service (other than the
Canadian version thereof, if any), (b) any web-based service including
"xxxxxxxxxx.xxx", "xxxxxx.xxx" and "xx.xxx", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe affiliates or any
similar "sub-service," (d) any programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise substantially complete operational
CONFIDENTIAL
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control (e.g., third-party Content areas), (e) any yellow pages, white pages,
classifieds or other search, directory or review services or Content and (f) any
co-branded or private label branded version of the U.S. version of the
CompuServe brand service, (g) any version of the U.S. version of the CompuServe
brand service which offers Content, distribution, services and/or functionality
materially different from the Content, distribution, services and/or
functionality associated with the standard U.S. version of the CompuServe brand
service, which is optimized for narrow-band distribution (but may, but need not,
be accessed through a broadband platform), including, without limitation, any
version of such service distributed through any platform or device other than a
desktop personal computer and (h) any property, feature, product or service
which CompuServe or its affiliates may acquire subsequent to the Effective Date.
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, and
ICP 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) 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. Text, images, video, audio (including, without limitation, music used
in synchronism or timed relation with visual displays) and other data, Products,
advertisements, promotions, URLs, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
CONTEST. "Contest" shall have the meaning set forth in Section 3 of Exhibit F
hereto.
CONTINUED LINK. "Continued Link" shall have the meaning set forth in Section
5.3.1 of this Agreement.
CUSTOMERS. "Customers" shall have the meaning set forth in Section 9 of Exhibit
F hereto.
DIGITAL CITY. The standard, U.S. version of Digital City's local content
offerings marketed under the Digital City-Registered Trademark- brand name,
which is optimized for narrow-band distribution (but may, but need not, be
accessed through a broadband platform), or its successors thereto,
specifically excluding (a) the AOL Service, XXX.xxx, Netcenter, or any other
AOL Interactive Site, (b) any international versions of such local content
offerings (other than the Canadian version thereof, if any), (c) the
CompuServe-Registered Trademark- brand service and any other CompuServe
products or services (d) "ICQ-TM-," "AOL NetFind-TM-," "AOL Instant
Messenger-TM-," "Digital City," "NetMail-TM-," "Electra", "Thrie", "Real
Fans", "Love@AOL", "Entertainment Asylum," "AOL Hometown," "My News" or any
similar independent product, service or property which may be offered by,
through or with the standard narrow band version of Digital City's local
content offerings, (e) any programming or Content area offered by or through
such local content offerings over which AOL does not exercise substantial
operational control (including, without limitation, Content areas controlled
by other parties and member-created Content areas), (f) any yellow pages,
white pages, classifieds or other search, directory or review services or
Content offered by or through such local content offerings, (g) any property,
feature, product or service which AOL or its affiliates may acquire
subsequent to the Effective Date, (h) any other version of a Digital City
local content offering which is materially different from the U.S. version of
Digital City's local content offerings marketed under the Digital
City-Registered Trademark- brand name, which, by virtue of its branding,
distribution, functionality, Content or services, including, without
limitation, any co-branded version of the offerings or any version
distributed through any broadband distribution platform or through any
platform or device other than a desktop personal computer, is optimized for
narrow-band distribution (but may, but need not, be accessed through a
broadband platform), and (i) Digital City-branded offerings in any local area
where such offerings are not owned or operationally controlled by America
Online, Inc. or DCI (e.g., Chicago, Orlando, South Florida, and Hampton
Roads).
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DISCLAIMED DAMAGES. "Disclaimed Damages" shall have the meaning set forth in
Section 9.1 of Exhibit G hereto.
DISPUTE. "Dispute" shall have the meaning set forth in Section 6.1 of this
Agreement.
EDITORIAL CONTENT. "Editorial Content" shall have the meaning set forth in
Section 2.2 of this Agreement.
EXCLUSIVE SERVICES. "Exclusive Services" shall have the meaning set forth in
Section 3.1 of this Agreement.
FIRST LEVEL DETAIL SCREEN. The screen with respect to each ICP Classifieds
Listing that is linked to from the Results Screen, resides on AOL's servers, and
provides a textual description of a specific employment opportunity.
ICP COMPETITORS. Any entity which has as a core business the provision of
products or services equivilent to any of the Exclusive Services.
ICP CREDITED PAGE. Any page within the AOL Properties created for the primary
purpose of displaying ICP Content (e.g., a ClassifiedPlus results page showing
ICP Content).
ICP INTERACTIVE SITE. Any Interactive Site (other than the Affiliated ICP Sites)
which is managed, maintained, owned or controlled by ICP or its agents.
ICP NONPAYMENT TERMINATION. "ICP Nonpayment Termination" shall have the meaning
set forth in Section 5.4 of the Agreement.
ICP TECHNICAL PROBLEM. "ICP Technical Problem" shall have the meaning set forth
in Section 5 of Exhibit E hereto.
ICQ. The standard, English-language version of the instant messaging, chat and
"buddy list" service of ICQ as made available by or through ICQ or any affiliate
of ICQ and any successor services thereto, including any Updates to such
service, but specifically excluding (a) "ICQ It!" or any other product, service,
property, programming or Content area over which ICQ or any ICQ affiliate does
not exercise substantial operational control, (b) any non-instant messaging,
non-chat or non-buddy-list services (including, without limitation, e-mail or
e-mail services), (c) ICQ Web hosting, unified messaging, search, co-browsing,
shopping or ticker areas or services (including, without limitation, any related
"push" products or services), (d) any clients unrelated to instant messaging and
buddy lists (e) any property, feature, product or service which ICQ or any ICQ
Affiliate acquires subsequent to the Effective Date, (f) any version of ICQ that
is co-branded with an unaffiliated third party, and (g) any other version of an
ICQ service which, by virtue of its features, functionality or distribution, is
materially different from the platform on which the ICQ Service operates as of
the Effective Date (e.g., an ICQ service designed primarily for distribution
over a cable TV, satellite TV or comparable broadband network, or an ICQ service
designed primarily for distribution to a hand-held, wireless personal digital
assistant (e.g., a Palm VII PDA).
IMPRESSION. A page view containing the applicable Promotion served to a user, as
such page views may be reasonably determined and measured by AOL in accordance
with its standard methodologies and protocols.
INDEMNIFIED PARTY. "Indemnified Party" shall have the meaning set forth in
Section 9.4 of Exhibit G hereto.
INDEMNIFYING PARTY. "Indemnifying Party" shall have the meaning set forth in
Section 9.4 of Exhibit G hereto.
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INITIAL TERM. "Initial Term" shall have the meaning set forth in Section 5.1 of
this Agreement.
INTEGRATED IMPRESSIONS. "Integrated Impressions" shall have the meaning set
forth in Section 1.2.1 of this Agreement.
INTEGRATED IMPRESSIONS COMMITMENT. "Integrated Impressions Commitment" shall
have the meaning set forth in Section 1.2.1 of this Agreement.
INTEGRATED IMPRESSIONS FINAL SHORTFALL. "Integrated Impressions Final Shortfall"
shall have the meaning set forth in Section 1.2.1 of this Agreement.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i) online
or Internet connectivity services (e.g., an Internet service provider); (ii) an
interactive site or service featuring a broad selection of aggregated third
party interactive content (or navigation thereto) (e.g., an online service or
search and directory service) and/or marketing a broad selection of products
and/or services across numerous interactive commerce categories (e.g., an online
mall or other leading online commerce site); (iii) a persistent desktop client;
and (iv) communications software capable of serving as the principal means
through which a user creates, sends and receives electronic mail or real time
online messages (whether by telephone, computer or other means).
INTERACTIVE SITE. Any interactive site or area, including, by way of example and
without limitation, (i) an ICP 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 Active
Desktop.
JOB LISTING REVENUES. Amounts owed to ICP by third parties solely in connection
with the posting of employment opportunities on or through the Affiliated ICP
Sites (but not on or through the Principal ICP Interactive Site or any other ICP
Interactive Site), as further described in Section A of Exhibit L hereto.
JOBS DATABASE. The integrated database of ICP's jobs listings to be supplied by
ICP hereunder.
KEYWORD SEARCH TERMS. (a) The Keyword-TM- online search terms made available on
the AOL Service, combining AOL's Keyword-TM- online search modifier with a term
or phrase specifically related to ICP (and determined in accordance with the
terms of this Agreement), and (b) the Go Word online search terms made available
on CompuServe, combining CompuServe's Go Word online search modifier with a term
or phrase specifically related to ICP and determined in accordance with the
terms of this Agreement).
LAUNCH DATE. "Launch Date" shall have the meaning set forth in Section 17 of
Exhibit G hereto.
LIABILITIES. "Liabilities" shall have the meaning set forth in Section 9.3 of
Exhibit G hereto.
LICENSED CONTENT. All Content offered through any Affiliated ICP Site(s)
pursuant to this Agreement or otherwise provided by ICP or its agents in
connection herewith (e.g., offline or online promotional Content, Promotions,
AOL "slideshows" , etc.), including in each case, any modifications, upgrades,
updates, enhancements, and related documentation.
MANAGEMENT COMMITTEE. "Management Committee" shall have the meaning set forth in
Section 6.1 of this Agreement.
MARKS. "Marks" shall have the meaning set forth in Section 3 of Exhibit G
hereto.
NETSCAPE WEB SITE. The collection of local language HTML documents targeted at
end users in the territory programmed and freely accessible to the public via
the Internet at the URL xxxx://xxxx.xxxxxxxx.xxx (or any successor address
designated from time to time by Netscape
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Communications Corporation, but specifically excluding (a) the AOL Service,
(b) XXX.xxx, (c) any international versions (other than the Canadian version
thereof, if any) of such site, (d) "ICQ," "AOL Netfind-TM-," "AOL Instant
Messenger-TM-," "NetMail-TM-," "AOL Hometown," "My News," "Digital City-TM-,"
or any similar independent product or service offered by or through such site
or any other AOL Interactive Site, (e) any programming or Content area
offered by or through such site over which AOL does not exercise
substantially complete operational control (including, without limitation,
Content areas controlled by other parties and member-created Content areas),
(f) any programming or Content area offered by or through the U.S. version of
the America Online-Registered Trademark- brand service which was operated,
maintained or controlled by the former AOL Studios division (e.g., Electra),
(g) any yellow pages, white pages, classifieds or other search, directory or
review services or Content offered by or through such site or any other AOL
Interactive Site, (h) any property, feature, product or service which AOL or
its affiliates may acquire subsequent to the Effective Date and (i) any other
version of an AOL or Netscape Communications Corporation Interactive Site
which is materially different from Netscape Communications Corporation's
primary Internet-based Interactive Site marketed under the "Netscape
Netcenter-TM-" brand, by virtue of its branding, distribution, functionality,
Content or services, including, without limitation, any co-branded versions
and any version distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer (e.g.
Custom NetCenters built specifically for third parties).
NEW FUNCTIONALITY. "New Functionality" shall have the meaning set forth in
Section 9.v of Exhibit E hereto.
OFFSET AMOUNT. "Offset Amount" shall have the meaning set forth in Section 5.4
of the Agreement.
PERSONAL ALERT PROFILE BOUNTIES. "Personal Alert Profile Bounties" shall mean
the bounty fees set forth on Exhibit L hereto per AOL User Personal Alert
Profile posted on or through any Affiliated ICP Site (but not on or through the
Principal ICP Interactive Site or any other ICP Interactive Site).
PRESS RELEASE. "Press Release" shall have the meaning set forth in Section 5.7
of this Agreement.
PRINCIPAL ICP INTERACTIVE SITE. The principal ICP Interactive Site, currently
located at the URL xxxx://xxx.xxxxxxx.xxx (or any successor Interactive Site
thereto), but not including any co-branded Interactive Site.
PRIOR BUSINESS RELATIONSHIP. "Prior Business Relationship" shall have the
meaning set forth in Section 11 of Exhibit G hereto.
PRO RATA REFUND FORMULA. [*****]
PRODUCT. Any product, good or service which ICP offers, sells, provides,
distributes or licenses to AOL Users directly or indirectly through (i) any
Affiliated ICP Site (including through any ICP Interactive Site linked thereto),
or (ii) any other electronic means directly targeted to AOL Users (e.g., e-mail
offers).
PRODUCTION PLAN. "Production Plan" shall have the meaning set forth in Section
10 of Exhibit F hereto.
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PROGRAMMING PLAN. The plan dated December 1, 1999 mutually agreed upon by the
Parties relating to ICP's presence on the AOL Properties and the Affiliated ICP
Sites. The Programming Plan shall have been acknowledged in writing by the
Parties.
PROJECT PROFILES. A description of a project seeking specific personnel to
perform services in connection with such project.
PROMO CONTENT. "Promo Content" shall have the meaning set forth in Section 1.3
of this Agreement.
PROMOTIONAL MATERIALS. "Promotional Materials" shall have the meaning set forth
in Section 1 of Exhibit G hereto.
PROMOTIONS. The promotions described on Exhibit A, any comparable promotions
delivered by AOL in accordance with Section 1.1 of this Agreement, and any
additional promotions of any Affiliated ICP Site provided by AOL (including,
without limitation, additional Keyword Search Terms and other navigational
tools).
PROMOTIONS REPORTS. "Promotions Reports" shall have the meaning set forth in
Section 4.7.2 of this Agreement.
QUALIFIED SUBSCRIBER. Any person or entity who registers for the AOL Service or
the CompuServe Service (as the case may be) during the Term pursuant to the
partner marketing arrangement described in Section C of Exhibit C hereto (i.e.,
using ICP's special promotion identifier) and who pays the then-standard fees
required for membership to the Service for at least sixty (60) consecutive days
(following the expiration of any free service promotional period).
RENEWAL TERM. "Renewal Term" shall have the meaning set forth in Section 5.2 of
this Agreement.
RESULTS SCREEN. Any screen or page within the Classified Area displaying results
of an AOL user Search of the Database displayed within the user interface
designed by AOL pursuant to this Agreement.
RESUME ACQUISITION BOUNTIES. The bounty fees set forth on Exhibit L hereto per
AOL User resume posted on or through any Affiliated ICP Site (but not on or
through the Principal ICP Interactive Site or any other ICP Interactive Sites,
except during the period prior to the launch of the Affiliated ICP Sites as the
result of links from the AOL Properties).
SEARCH. A query made by an AOL user on any Search Screen which links to a
Results Screen, consisting of results (or a statement that no matching results
are available in the Database) when an AOL user clicks on a "search" or "go" or
similar button after partially or fully completing a search form designed to
query the Search.
SEARCH SCREEN. Any screen or page within the Classified Area where an AOL user
is prompted to manually type in a category and a location to form the basis of a
query of the Search.
TALENT MARKET. An online marketplace in which either (i) individual free agents,
individual consultants and independent professionals market their skills to
employers or (ii) employers market their job opportunities to job seekers, in an
auction-style environment (but specifically excludes contract service businesses
(e.g., accounting or legal services) and includes, but is not limited to, the
ICP Product currently known as Talent Market.
TERM. "Term" shall have the meaning set forth in Section 5.2 of this Agreement.
TERMINATION DATE. The date on which this Agreement terminates.
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TRANSACTION REPORTS. "Transaction Reports" shall have the meaning set forth in
Section 4.7.1 of this Agreement.
USER INFORMATION. "User Information" shall have the meaning set forth in Section
13 of Exhibit G hereto.
VIRTUAL CAREER FAIR FEES. The fees collected in connection with virtual career
fairs conducted on or through any Affiliated ICP Site (but not on or through the
Principal ICP Interactive Site or any other ICP Interactive Site).
WORKPLACE. The Workplace area of the AOL Service (or any similar area on any of
the AOL Properties or successor area thereto).
YEAR. The time period between each of (i) the Effective Date and the first
anniversary thereof; (ii) the day immediately following the first anniversary of
the Effective Date and the second anniversary of the Effective Date; (iii) the
day immediately following the second anniversary of the Effective Date and the
third anniversary of the Effective Date; and (iv) the day immediately following
the third anniversary of the Effective Date and the fourth anniversary of the
Effective Date.
YEAR 1. The first Year of this Agreement.
YEAR 2. The second Year of this Agreement.
YEAR 3. The third Year of this Agreement.
YEAR 4. The fourth Year of this Agreement.
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EXHIBIT C
ICP CROSS-PROMOTION
A. Within the Principal ICP Interactive Site (specifically not
including any co-branded sites), ICP shall include (above or below
the fold, as ICP shall determine) the following (collectively, the
"AOL Promos"): (i) a promotional banner or button (at least 90 x 30
pixels or 70 x 70 pixels in size) appearing on the first screen of
the Principal ICP Interactive Site, to promote such AOL products or
services as AOL may designate and are not competitive with ICP (for
example, the America Online-Registered Trademark- brand service, the
CompuServe-Registered Trademark-brand service, the
AOL.com-Registered Trademark- site, any of the Digital City services
or the AOL Instant Messenger-TM-service); or (ii) a "Try AOL"
feature (at least 90 x 30 pixels or 70 x 70 pixels in size) through
which users can obtain promotional information about AOL products or
services designated by AOL and are not competitive with ICP and, at
AOL's option, download or order the then-current version of client
software for such AOL products or services; OR (iii) a button or
link to enable users to download either AOL -- Instant Messenger or
ICQ (to be determined by AOL in AOL's sole discretion). AOL will
provide the creative content to be used in the AOL Promos (including
designation of links from such content to other content pages). ICP
shall post (or update, as the case may be) the creative content
supplied by AOL within the spaces for the AOL Promos within five
days of its receipt of such content from AOL. Without limiting any
other reporting obligations of the Parties contained herein, ICP
shall provide AOL with monthly written reports specifying the number
of impressions to the pages containing the AOL Promos during the
prior month. In the event that AOL elects to serve the AOL Promos to
the Principal ICP Interactive Site from an ad server controlled by
AOL or its agent, ICP shall take all reasonable operational steps
necessary to facilitate such ad serving arrangement including,
without limitation, inserting HTML code designated by AOL on the
pages of the ICP Interactive Site on which the AOL Promos will
appear. In addition, within the Principal ICP Interactive Site, ICP
shall provide prominent promotion for the keywords granted to ICP
hereunder.
B. In ICP's print, radio, television and "out of home" (e.g., buses and
billboards) advertisements and in any publications, programs, features
or other forms of media over which ICP exercises complete or
substantially complete editorial control, ICP will include specific
references to or mentions of the "keyword" term "Monster". Accordingly,
in the case of all print and out of home advertisements, ICP shall
include a reference to "America Online Keyword: Monster" in a type size
reasonably determined in ICP's discretion. In the case of all radio and
television advertisements, ICP shall include a voice (but not print)
reference to one of the following (the selection of which shall be at
ICP's discretion): "America Online Keyword: Monster," "AOL Keyword:
Monster," "Located at Keyword Monster on America Online," or "Located
at Keyword Monster on AOL"; provided, however, that to the extent
practicable ICP shall use "America Online" rather than "AOL".
C. In addition to the foregoing, ICP shall provide AOL in advance with
periodic media plans with respect to the ICP cross-promotional efforts
set forth on this Exhibit C.
D. ICP will work with AOL to carry out at AOL's cost and expense (i)
partner marketing arrangements designed to distribute AOL Service
and/or CompuServe Service CD-ROMS and (ii) other promotional offers
through its online and offline distribution channels and events. ICP
shall receive a standard bounty fee for any Qualified Subscriber
acquired through any such arrangements or promotions. In addition, AOL
and ICP shall discuss in good faith further joint marketing
opportunities.
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EXHIBIT D
DESCRIPTION OF PRODUCTS
To the extent permitted by (and subject to the terms and conditions of) this
Agreement:
1. The Exclusive Services (as defined in Section 3.1)
2. Editorial Content related to the Exclusive Services
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EXHIBIT D-1
AOL EXCLUSIVE OFFERS
AOL Exclusive Offers may include the following:
1. [*****]
2. [*****]
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EXHIBIT E
OPERATIONS
1. [Intentionally Omitted].
2. INFRASTRUCTURE OF AFFILIATED ICP SITES. ICP will be responsible for all
communications, hosting and connectivity costs and expenses associated with the
Affiliated ICP Sites. The Parties shall mutually agree as to the optimal means
for connecting the Affiliated ICP Sites to the AOL Network. ICP will provide all
hardware, software, telecommunications lines and other infrastructure necessary
to meet traffic demands on the Affiliated ICP Sites from the AOL Network. ICP
will design and implement the network between the AOL Service and Affiliated ICP
Sites such that (i) no single component failure will have a materially adverse
impact on AOL Members seeking to reach any Affiliated ICP Site from the AOL
Network and (ii) no single line under material control by ICP will run at more
than 70% average utilization for a 5-minute peak in a daily period (except that,
provided that ICP can reasonably demonstrate that its network can accommodate
anticipated traffic, ICP shall not be required to meet the threshold set forth
in this Section 2(ii), (a) on the date of the Superbowl and the two days
thereafter, or (b) on the commencement date of any major promotional activity,
not to exceed four dates per calendar year, and the two days thereafter). In
this regard, ICP will provide AOL, upon request, with a detailed network diagram
regarding the architecture and network infrastructure supporting the Affiliated
ICP Site. In the event that ICP elects to create a custom version of any
Affiliated ICP Site in order to comply with the terms of this Agreement, ICP
will bear responsibility for all aspects of the implementation, management and
cost of such customized site.
3. OPTIMIZATION; SPEED. ICP will use commercially reasonable efforts to ensure
that: (a) the functionality and features within each of the Affiliated ICP Sites
and the Principal ICP Interactive Site are optimized for the client software
then in use by AOL Members; and (b) the Affiliated ICP Sites are designed and
populated in a manner that minimizes delays when AOL Members attempt to access
such site. At a minimum, ICP will ensure that any Affiliated ICP Site's data
transfers initiate within fewer than fifteen (15) seconds on average. Prior to
commercial launch of any material promotions described herein, ICP will permit
AOL to conduct performance testing of the Affiliated ICP Sites (in person or
through remote communications), with such commercial launch not to commence
until such time as AOL is reasonably satisfied with the results of any such
testing. In the event that the Parties determine that a high-speed connection is
necessary to maintain quick and reliable transport of information to any
Affiliated ICP Site, ICP shall pay for all technology and/or production related
expenses associated with establishing and maintaining such high-speed
connection, provided, however, that (i) AOL shall lease any necessary DS-3 lines
at the best discounted rates available to AOL and charge back the cost (without
markup) to ICP, and (ii) AOL shall not charge ICP any transit or peering fees.
4. USER INTERFACE. ICP will maintain a graphical user interface within each
Affiliated ICP Site that is competitive in all material respects with interfaces
of other similar sites based on similar form technology. AOL reserves the right
to review and approve the user interface and site design prior to launch of the
Promotions and to conduct focus group testing to assess compliance with respect
to such consultation and with respect to ICP's compliance with the preceding
sentence, provided such activities are completed within ten (10) business days
of the date on which ICP makes such user interface and site design available to
AOL.
5. TECHNICAL PROBLEMS. ICP agrees to use commercially reasonable efforts to
address material technical problems (over which ICP exercises control) affecting
use by AOL Members of any Affiliated ICP Site (a "ICP Technical Problem," which
term shall include any violation by ICP of the requirements of this Exhibit E)
promptly following notice thereof. In the event that ICP is unable to resolve a
ICP Technical Problem within a commercially reasonable period following notice
thereof from AOL (including, without limitation, infrastructure deficiencies
producing user delays), AOL will have the right to regulate the promotions it
provides to ICP hereunder until such time as ICP corrects the ICP Technical
Problem at issue.
6. MONITORING. ICP will ensure that the performance and availability of the
Affiliated ICP Sites is monitored on a continuous basis. ICP will provide AOL
with contact information (including e-mail, phone, pager and fax information, as
applicable, for both during and after business hours) for ICP's principal
business and technical representatives, for use in cases when issues or problems
arise with respect to any Affiliated ICP Site.
7. TELECOMMUNICATIONS. Where applicable ICP will utilize 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.
8. SECURITY. ICP will utilize Internet standard encryption technologies (e.g.,
Secure Socket Layer - SSL) to provide a secure environment for conducting
transactions and/or transferring private member information (e.g. credit card
numbers and banking/financial information) to and from any Affiliated ICP Site.
Private member information shall not include any resume or job-related data. ICP
will facilitate periodic reviews of the Affiliated ICP Sites by AOL in order to
evaluate the security risks of such site. ICP will promptly remedy any security
risks or breaches of security as may be identified by AOL's Operations Security
team.
9. TECHNICAL PERFORMANCE.
i. ICP will design the Affiliated ICP Sites to support the AOL-client
embedded versions of the Microsoft Internet Explorer 3.XX and 4.XX
browsers (Windows and Macintosh)and the Netscape Browser 4.XX and make
commercially reasonable
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efforts to support all other AOL browsers listed at:
"xxxx://xxxxxxxxx.xxxx.xxx.xxx."
ii. To the extent ICP creates customized pages on the Affiliated ICP Site
for AOL Members, ICP will develop and employ a methodology to detect
AOL Members (e.g. examine the HTTP User-Agent field in order to
identify the "AOL Member-Agents" listed at: "xxxx://xxxxxxxxx.
xxxx.xxx.xxx)."
iii. ICP will periodically review the technical information made available
by AOL at xxxx://xxxxxxxxx.xxxx.xxx.xxx.
iv. ICP will design its site to support HTTP 1.0 or later protocol as
defined in RFC 1945 and to adhere to AOL's parameters for refreshing or
preventing the caching of information in AOL's proxy system as outlined
in the document provided at the following URL:
xxxx://xxxxxxxxx.xxxx.xxx.xxx. ICP IS RESPONSIBLE FOR THE MANIPULATION
OF THESE PARAMETERS IN WEB-BASED OBJECTS SO AS TO ALLOW THEM TO BE
CACHED OR NOT CACHED AS OUTLINED IN RFC 1945.
V. PRIOR TO RELEASING MATERIAL, NEW FUNCTIONALITY OR FEATURES THROUGH ANY
AFFILIATED ICP SITE ("NEW FUNCTIONALITY"), ICP WILL USE COMMERCIALLY
REASONABLE EFFORTS TO (I) TEST THE NEW FUNCTIONALITY TO CONFIRM ITS
COMPATIBILITY WITH AOL SERVICE CLIENT SOFTWARE AND (II) PROVIDE AOL
WITH WRITTEN NOTICE OF THE NEW FUNCTIONALITY SO THAT AOL CAN PERFORM
TESTS OF THE NEW FUNCTIONALITY TO CONFIRM ITS COMPATIBILITY WITH THE
AOL SERVICE CLIENT SOFTWARE, PROVIDED, HOWEVER, THAT SUCH TESTS SHALL
BE COMPLETED WITHIN TEN (10) BUSINESS DAYS. SHOULD ANY NEW MATERIAL,
NEW FUNCTIONALITY OR FEATURES THROUGH THE AFFILIATED ICP SITE BE
RELEASED WITHOUT NOTIFICATION TO AOL, AOL WILL NOT BE RESPONSIBLE FOR
ANY ADVERSE MEMBER EXPERIENCE UNTIL SUCH TIME THAT COMPATIBILITY TESTS
CAN BE PERFORMED AND THE NEW MATERIAL, FUNCTIONALITY OR FEATURES
QUALIFIED FOR THE AOL SERVICE
10. AOL INTERNET SERVICES ICP SUPPORT. AOL will provide ICP with access to the
standard online resources, standards and guidelines documentation, technical
phone support, monitoring and after-hours assistance that AOL makes generally
available to similarly situated web-based partners. AOL support will not, in any
case, be involved with content creation on behalf of ICP or support for any
technologies, databases, software or other applications which are not supported
by AOL or are related to any ICP area other than the Affiliated ICP Sites.
Support to be provided by AOL is contingent on ICP providing to AOL demo account
information (where applicable), a detailed description of each Affiliated ICP
Site's software, hardware and network architecture and access to the Affiliated
ICP Sites for purposes of such performance and load testing as AOL elects to
conduct.
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EXHIBIT F
STANDARD ONLINE COMMERCE TERMS & CONDITIONS
1. AOL NETWORK DISTRIBUTION. Except as provided in this Agreement, ICP will not
authorize or permit any third party to distribute or promote the Products or any
ICP Interactive Site through the AOL Network absent AOL's prior written
approval. Except as provided in the Agreement, this Promotions and any other
promotions or advertisements purchased from or provided by AOL will link only to
the Affiliated ICP Site, will be used by ICP solely for its own benefit and will
not be resold, traded, exchanged, bartered, brokered or otherwise offered to any
third party.
2. PROVISION OF OTHER CONTENT. In the event that AOL notifies ICP that (i) as
reasonably determined by AOL, any Content within the Affiliated ICP Site
violates AOL's then-standard Terms of Service (as set forth on the America
Online(R) brand service at Keyword term "TOS"), for the AOL Service or any other
AOL property through which the Affiliated ICP Site is promoted, the terms of
this Agreement or any other standard, written AOL policy or (ii) AOL reasonably
objects to the inclusion of any Content within any Affiliated ICP Site (other
than any specific items of Content which may be expressly identified in this
Agreement), then ICP will take commercially reasonable steps to block access by
AOL Users to such Content using ICP's then-available technology. In the event
that ICP cannot, through its commercially reasonable efforts, block access by
AOL Users to the Content in question, then ICP 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. ICP will
cooperate with AOL's reasonable requests to the extent AOL elects to implement
any such access restrictions.
3. CONTESTS. ICP will take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted or promoted through any Affiliated
ICP Site (a "Contest") complies with all applicable federal, state and local
laws and regulations.
4. NAVIGATION. [Intentionally blank]
5. DISCLAIMERS. Upon AOL's request, ICP agrees to include within each Affiliated
ICP Site a product disclaimer (the specific form and substance to be mutually
agreed upon by the Parties) indicating that transactions are solely between ICP
and AOL Users purchasing Products from ICP.
6. AOL LOOK AND FEEL. ICP 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, subject to ICP's ownership
rights in any ICP trademarks, ICP-supplied Content or the look and feel of
ICP-supplied Content.
7. MANAGEMENT OF THE AFFILIATED ICP SITES. ICP will manage, review, delete,
edit, create, update and otherwise manage all Content available on or through
any Affiliated ICP Site, in a timely and professional manner and in accordance
with the terms of this Agreement. ICP will ensure that each of the Affiliated
ICP Sites is current, accurate and well-organized at all times. ICP warrants
that the Products and other Licensed Content : (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 generally applicable then existing Terms of
Service (which shall be deemed not to include AOL's Privacy Policy) for the AOL
Service and any other AOL Property through which any Affiliated ICP Site will be
promoted or any other standard, written AOL policy and (iii) will not violate
any applicable law or regulation, including those relating to contests,
sweepstakes or similar promotions. Additionally, ICP represents and warrants
that it owns or has a valid license to all rights to any Licensed Content used
in AOL "slideshow" or other formats embodying elements such as graphics,
animation and sound without violating the rights of any other person or entity.
ICP also warrants that a reasonable basis exists for all Product performance or
comparison claims appearing through any Affiliated ICP Site. AOL may require
that any Affiliated ICP Site be a mirrored version of any ICP Interactive Site
selling the products described on Exhibit D.
8. DUTY TO INFORM. ICP will promptly inform AOL of any information related to
any Affiliated ICP 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 ICP to provide customer
service to persons or entities purchasing Products through the AOL Network
("Customers"). ICP will bear full responsibility for all customer service,
including without limitation, order processing, billing, fulfillment, shipment,
collection and other customer service associated with any Products offered, sold
or licensed through any Affiliated ICP Site, and AOL will have no obligations
whatsoever with respect thereto. ICP will receive all emails from Customers via
a computer available to ICP's customer service staff and generally respond to
such emails within one business day of receipt. ICP will also comply with the
requirements of any federal, state or local consumer protection or disclosure
law. Payment for Products will be collected by ICP directly from customers.
ICP's order fulfillment operation will be subject to AOL's reasonable review.
ICP shall use commercially reasonable efforts to provide a level of customer
service consistent with the relevant accepted industry standards.
10. PRODUCTION WORK. Except as otherwise provided in this Agreement, in the
event that ICP requests AOL's production assistance in connection with (i)
ongoing programming and maintenance related to any Affiliated ICP Site, (ii) a
redesign of or addition to any Affiliated ICP 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
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production work, ICP 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 ICP 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 the agreed-upon Production Plan, such
agreement will be reflected in a separate work order signed by the Parties. To
the extent ICP 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 standards & practices (as provided on the America Online brand
service at Keyword term "styleguide"). The specific production resources which
AOL allocates to any production work to be performed on behalf of ICP will be as
determined by AOL in its sole discretion. With respect to any routine
production, maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning and
integration of any Affiliated ICP Site ("Routine Services"), ICP will pay the
then-standard fees charged by AOL for such Routine Services.
11. OVERHEAD ACCOUNTS. To the extent AOL has granted ICP any overhead accounts
on the AOL Service, ICP 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 ICP, but ICP 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 screen
names and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any overhead account.
12. NAVIGATION TOOLS. Any Keyword Search Terms to be directed to any Affiliated
ICP Site shall be (i) subject to availability for use by ICP and (ii) limited to
the combination of the Keyword-TM- search modifier combined with a registered
trademark of ICP (e.g. "AOL keyword: XYZ Company Name"). AOL reserves the right
to revoke at any time ICP's use of any Keyword Search Terms which have been
determined by a court or other governmental authority to violate the trademarks
of a third party and, in the event that AOL receives notice from a third party
that it believes that ICP's use of any Keyword Search Terms violates such third
party's rights, AOL shall have the right to suspend ICP's use of such Keyword
Search Term unless ICP provides AOL, within five (5) business days of written
demand therefor, with (i) an indemnity for any liability resulting from ICP's
continued use of such Keyword Search Term and (ii) an opinion of counsel, in a
form reasonably acceptable to AOL, which concludes that ICP has meritorious
defenses to any trademark infringement claim. ICP acknowledges that its
utilization of a Keyword Search Term will not create in it, nor will it
represent it has, any right, title or interest in or to such Keyword Search
Term, other than the right, title and interest ICP holds in ICP's registered
trademark independent of the Keyword Search Term. Without limiting the
generality of the foregoing, ICP will not: (a) attempt to register or otherwise
obtain trademark or copyright protection in the Keyword Search Term; or (b) use
the Keyword Search Term, except for the purposes expressly required or permitted
under this Agreement. To the extent AOL allows AOL Users to "bookmark" the URL
or other locator for any such Affiliated ICP Site, such bookmarks will be
subject to AOL's and ICP's control at all times. Upon the termination of this
Agreement, except as otherwise provided for in this Agreement, ICP's rights to
any Keyword Search Terms and bookmarking will terminate.
13. MERCHANT CERTIFICATION PROGRAM. ICP may 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, generally applicable 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.
14. REWARD PROGRAMS. On each Affiliated ICP Site, ICP shall not offer, provide,
implement or otherwise make available any promotional programs or plans that are
intended to provide customers with rewards or benefits in exchange for, or on
account of, their past or continued loyalty to, or patronage or purchase of, the
products or services of ICP or any third party (e.g., a promotional program
similar to a "frequent flier" program), unless such promotional program or plan
is provided exclusively through AOL's "AOL Rewards" program, accessible on the
AOL Service at Keyword: "AOL Rewards."
15. SEARCH TERMS. To the extent this Agreement sets forth any mechanism by which
the Affiliated ICP Sites will be promoted in connection with specified search
terms Monster and Xxxxxxx.xxx within any AOL product or service, ICP hereby
represents and warrants that ICP has all consents, authorizations, approvals,
licenses, permits or other rights necessary for ICP to use such specified search
terms. Notwithstanding the foregoing, AOL shall have the right to suspend the
use of any search term (other than Keyword Search Terms) if AOL has reason to
believe continued use may subject AOL to liability or other adverse
consequences.
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EXHIBIT G
STANDARD LEGAL TERMS & CONDITIONS
1. [Intentionally Omitted]
2. TRADEMARK LICENSE. In designing and implementing the Materials and subject
to the other provisions contained herein, ICP will be entitled to use the
following trade names, trademarks, and service marks of AOL: the "America
Online-Registered Trademark-" 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 ICP for which ICP holds all
rights necessary for use in connection with this Agreement (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.
3. OWNERSHIP OF TRADEMARKS. Each Party acknowledges the ownership right 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 licenses expressly granted herein. Each Party
agrees not to do anything contesting or impairing the trademark rights of the
other Party.
4. 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.
5. 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.
6. 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 agreement to which such Party is a party or by which it is
otherwise bound; (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. ICP hereby represents and warrants that it possesses all
authorizations, approvals, consents, licenses, permits, certificates or other
rights and permissions necessary to sell the Products.
7. CONFIDENTIALITY. Each Party acknowledges that Confidential Information may be
disclosed to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, at least substantially equivalent to
the steps it takes to 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. Notwithstanding the foregoing, nothing herein shall
preclude either Party's ability to modify or withdraw such request, if in such
Party's reasonable judgment the Securities and Exchange Commission would not be
able to timely grant confidential treatment.
8. [Intentionally Omitted]
9. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
9.1 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
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POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE
OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE,
XXX.XXX OR THE AFFILIATED ICP SITES, 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 BOTH (I) CLAIMED BY A THIRD PARTY AND (II) ARE
SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9.3. EXCEPT AS PROVIDED IN
SECTION 9.3, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO
DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF
ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS
AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF FIXED PAYMENT OBLIGATIONS
OWED BY ICP HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE TO
LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT
TO THE AGREEMENT.
9.2 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 OR THE AFFILIATED ICP SITES,
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
AND ICP SPECIFICALLY DISCLAIM ANY WARRANTY REGARDING THE PROFITABILITY OF
THE AFFILIATED ICP SITES.
9.3 INDEMNITY. Either Party will defend, indemnify, save and hold harmless
the other Party and the officers, directors, agents, affiliates,
distributors, franchisees and employees of the other Party from any and all
third party claims, demands, liabilities, costs or expenses, including
reasonable attorneys' fees ("Liabilities"), resulting from the indemnifying
Party's material breach of any duty, representation, or warranty of this
Agreement.
9.4 CLAIMS. If a Party entitled to indemnification hereunder (the
"Indemnified Party") becomes aware of any matter it believes is
indemnifiable hereunder involving any claim, action, suit, investigation,
arbitration or other proceeding against the Indemnified Party by any third
party (each an "Action"), the Indemnified Party will give the other Party
(the "Indemnifying Party") prompt written notice of such Action. Such notice
will (i) provide the basis on which indemnification is being asserted and
(ii) be accompanied by copies of all relevant pleadings, demands, and other
papers related to the Action and in the possession of the Indemnified Party.
The Indemnifying Party will have a period of ten (10) days after delivery of
such notice to respond. If the Indemnifying Party elects to defend the
Action or does not respond within the requisite ten (10) day period, the
Indemnifying Party will be obligated to defend the Action, at its own
expense, and by counsel reasonably satisfactory to the Indemnified Party.
The Indemnified Party will cooperate, at the expense of the Indemnifying
Party, with the Indemnifying Party and its counsel in the defense and the
Indemnified Party will have the right to participate fully, at its own
expense, in the defense of such Action. If the Indemnifying Party responds
within the required ten (10) day period and elects not to defend such
Action, the Indemnified Party will be free, without prejudice to any of the
Indemnified Party's rights hereunder, to compromise or defend (and control
the defense of) such Action. In such case, the Indemnifying Party will
cooperate, at its own expense, with the Indemnified Party and its counsel in
the defense against such Action and the Indemnifying Party will have the
right to participate fully, at its own expense, in the defense of such
Action. Any compromise or settlement of an Action will require the prior
written consent of both Parties hereunder, such consent not to be
unreasonably withheld or delayed.
10. ACKNOWLEDGMENT. AOL and ICP each acknowledges that the provisions of this
Agreement were negotiated to reflect an informed, voluntary allocation between
them of all risks (both known and unknown) associated with the transactions
contemplated hereunder. The limitations and disclaimers related to warranties
and liability contained in this Agreement are intended to limit the
circumstances and extent of liability. The provisions of this Section 10 will be
enforceable independent of and severable from any other enforceable or
unenforceable provision of this Agreement.
11. SOLICITATION OF AOL USERS. During the term of the Agreement and for a two
year period thereafter, ICP will not use the AOL Network (including, without
limitation, the e-mail network contained therein) to solicit AOL Users on behalf
of another Interactive Service. More generally, ICP will not send unsolicited,
commercial e-mail (i.e., "spam") or other online communications (e.g., instant
messaging) through or into AOL's products or services, absent a Prior Business
Relationship. For purposes of this Agreement, a "Prior Business Relationship"
will mean that the AOL User to whom commercial e-mail or other online
communication is being sent has voluntarily either (i) engaged in a transaction
with ICP or (ii) provided information to ICP through a contest, registration, or
other communication, which included clear notice to the AOL User that the
information provided could result in commercial e-mail or other online
communication being sent to that AOL User by ICP or its agents. Any commercial
e-mail or other online communications to AOL Users which are otherwise permitted
hereunder, will (a) include a prominent and easy means to "opt-out" of receiving
any future commercial communications from ICP, and (b) shall also be subject to
AOL's then-standard restrictions on distribution of bulk e-mail (e.g., related
to the time and manner in which such e-mail can be distributed through or into
the AOL product or service in question).
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12. AOL USER COMMUNICATIONS. During the Term, to the extent that ICP is
permitted to communicate with AOL Users pursuant to this Agreement, in any such
communications targeted specifically to AOL Users (including, without
limitation, e-mail solicitations), ICP will not encourage AOL Users to take any
action inconsistent with the scope and purpose of this Agreement, including
without limitation, the following actions: (i) using an Interactive Site other
than the Affiliated ICP Sites for the purchase of Products, (ii) using Content
other than the Licensed Content; (iii) bookmarking of Interactive Sites; or (iv)
changing the default home page on the AOL browser. Additionally, with respect to
such AOL User communications, in the event that ICP encourages an AOL User to
purchase products through such communications, ICP shall ensure that (a) the AOL
Properties are promoted as the primary means through which the AOL User can
access the Affiliated ICP Sites and (b) any link to any Affiliated ICP Site will
link to a page which indicates to the AOL User that such user is in a site which
is affiliated with an AOL Property.
13. COLLECTION AND USE OF USER INFORMATION. ICP shall ensure that its
collection, use and disclosure of information obtained from AOL Users under this
Agreement ("User Information") complies with all applicable laws and regulations
and ICP's standard privacy policies which ICP shall prominently publish on the
site and provide adequate notice and disclosure regarding ICP's collection, use
and disclosure of user information. ICP will not disclose User Information
collected hereunder to any third party in a manner that identifies AOL Users as
end users of an AOL product or service or use Member Information collected under
this Agreement to market another Interactive Service
14. 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.
15. INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or employee 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.
16. 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 (i) on the delivery date if
delivered by confirmed facsimile (ii) on the delivery date if delivered
personally to the Party to whom the same is directed (iii) one business day
after deposit with a commercial overnight carrier, with written verification of
receipt; or (iv) five business days after the mailing date, whether or not
actually received, if sent by U.S. mail, return receipt requested, postage and
charged prepaid, or any other means of rapid mail delivery for which a receipt
is available. In the case of AOL, such notice will be provided to both the
Senior Vice President for Business Affairs (fax no. 000-000-0000) and the Deputy
General Counsel (fax no. 000-000-0000), each at the address of AOL set forth in
the first paragraph of this Agreement. In the case of ICP, such notice will be
provided to both the chief executive officer and the general counsel and, except
as otherwise specified herein, the notice address will be the address for ICP
set forth in the first paragraph of this Agreement, with the other relevant
notice information, including the recipient for notice and, as applicable, such
recipient's fax number or AOL e-mail address, to be as reasonably identified by
AOL.
17. LAUNCH DATES. In the event that any terms contained herein relate to or
depend on the commercial launch date of the Affiliated ICP Sites contemplated by
this Agreement (the "Launch Date"), then it is the intention of the Parties to
record such Launch Date in a written instrument signed by both Parties promptly
following such Launch Date; provided that, in the absence of such a written
instrument, the Launch Date will be as reasonably determined by AOL based on the
information available to AOL.
18. 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.
19. 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.
20. SURVIVAL. (a) Sections 2.21,5.3, 5.4, 5.6 and 6.2, as well as (i) the last
sentence of each of Sections 1.2.1 and 1.2.2 and (ii) the third sentence of
Section 1.3, of the body of the Agreement; (b) Sections 7 through 16, 18 through
22, and 25 through 30 of this Exhibit; and (c) any payment obligations accrued
prior to termination or expiration of this Agreement; will survive the
completion, expiration, termination or cancellation of this Agreement.
21. 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.
22. 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.
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23. 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.
24. ASSIGNMENT. Neither Party shall assign this Agreement or any right, interest
or benefit under this Agreement without the prior written consent of the other
Party, which consent shall not be unreasonably withheld. 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.
25. 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.
26. 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, neither Party
will be entitled to offset any amounts that it claims to be due and payable from
the other Party against amounts otherwise payable to such other Party.
27. APPLICABLE LAW. Except as otherwise expressly provided herein, 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.
28. 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.
29. 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.
30. 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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EXHIBIT H
[INTENTIONALLY BLANK]
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EXHIBIT I
[INTENTIONALLY BLANK]
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EXHIBIT J
[INTENTIONALLY BLANK]
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EXHIBIT K
ICP ADVERTISING REVENUE SHARE
----------------------------------- --------------------------------------
Amount of Advertising Revenues Percentage to be Paid to the Non-
on the Principal ICP Interactive Selling Party
Site
----------------------------------- --------------------------------------
Up to US$[*****] [*****]%
----------------------------------- --------------------------------------
US$[*****] - US$[*****] [*****]%
----------------------------------- --------------------------------------
Greater than US$[*****] [*****]%
----------------------------------- --------------------------------------
TARGETS SHALL RESTART DURING EACH YEAR OF THE AGREEMENT.
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EXHIBIT L
REVENUE SHARING ARRANGEMENT
X. XXXXXX 1.
AOL WILL RECEIVE [*****] PERCENT ([*****]%) OF JOB LISTING REVENUES
EARNED IN A CONTRACT YEAR AFTER THE AMOUNT IN EXCESS OF THE FOLLOWING
HURDLES (EACH, A "HURDLE") ACHIEVED IN THAT YEAR:
US$[*****] IN TOTAL REVENUE OR AFTER [*****] ORDERS TAKEN IN YEAR 1
US$[*****] IN TOTAL REVENUE OR AFTER [*****] ORDERS TAKEN IN YEAR 2
US$[*****] IN TOTAL REVENUE OR AFTER [*****] ORDERS TAKEN IN YEAR 3
US$[*****] IN TOTAL REVENUE OR AFTER [*****] ORDERS TAKEN IN YEAR 4
X. XXXXXX 2A.
IF HURDLE 1 IS MET, THEN MONSTER WILL MAKE THE FOLLOWING PAYMENTS AFTER
THE FOLLOWING HURDLES ARE MET:
1. RESUME ACQUISITION BOUNTIES
YEAR 1: US$[*****] FOR THE FIRST [*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME ABOVE [*****] UNIQUE
USER RESUMES
YEAR 2: US$[*****] FOR THE FIRST [*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME ABOVE [*****] UNIQUE
USER RESUMES
YEAR 3: US$[*****] FOR THE FIRST [*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME ABOVE [*****] UNIQUE
USER RESUMES
YEAR 4: US$[*****] FOR THE FIRST [*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME ABOVE [*****] UNIQUE
USER RESUMES
2. PERSONAL ALERT PROFILE ACQUISITION BOUNTIES
IN ANY YEAR: US$[*****] FOR THE FIRST [*****] UNIQUE USER PROFILES
US$[*****] FOR EACH UNIQUE USER PROFILE BETWEEN
[*****] AND [*****]
US$[*****] FOR EACH UNIQUE USER PROFILE ABOVE [*****]
3. VIRTUAL CAREER FAIR FEES
YEAR 1: [*****] PERCENT ([*****]%) OF ANY REVENUE OR FEES RECEIVED
BY ICP FROM CAREER FAIRS ("FAIR FEES") AFTER FIRST [*****]
CAREER FAIRS
YEAR 2: [*****] PERCENT ([*****]%) OF ANY FAIR FEES AFTER FIRST
[*****] CAREER FAIRS
YEAR 3: [*****] PERCENT ([*****]%) OF ANY FAIR FEES AFTER FIRST
[*****] CAREER FAIRS
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YEAR 4: [*****] PERCENT ([*****]%) OF ANY FAIR FEES FROM CAREER
FAIRS AFTER FIRST [*****] CAREER FAIRS
4. TALENT MARKET.
YEAR 1: US$[*****] FOR THE FIRST [*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE ABOVE [*****]
CANDIDATE PROFILES
YEAR 2: US$[*****] FOR THE FIRST [*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE ABOVE [*****]
CANDIDATE PROFILES
YEAR 3: US$[*****] FOR THE FIRST [*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE ABOVE [*****]
CANDIDATE PROFILES
YEAR 4: US$[*****] FOR THE FIRST [*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE ABOVE [*****]
CANDIDATE PROFILES
5. OTHER (E.G., OTHER CONSUMER SERVICES).
AOL AND ICP WILL NEGOTIATE THE TERMS FOR ANY NEW REVENUE STREAM
X. XXXXXX 2B.
IF HURDLE 1 IS NOT MET, BUT THE FOLLOWING HURDLES ARE MET, ICP WILL
MAKE THE FOLLOWING PAYMENTS:
1. RESUME ACQUISITION BOUNTIES.
YEAR 1: US$[*****] FOR THE FIRST [*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****]
AND [*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME ABOVE [*****] UNIQUE
USER RESUMES
YEAR 2: US$[*****] FOR THE FIRST [*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****]
UNIQUE USER RESUMES US$[*****] FOR EACH UNIQUE USER RESUME
BETWEEN [*****] AND [*****] UNIQUE USER RESUMES US$[*****]
FOR EACH RESUME ABOVE [*****] UNIQUE USER RESUMES
YEAR 3: US$[*****] FOR THE FIRST [*****] UNIQUE USER RESUMES
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US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES US$[*****] FOR EACH
UNIQUE USER RESUME BETWEEN [*****] AND [*****] UNIQUE
USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME ABOVE [*****] UNIQUE
USER RESUMES
YEAR 4: US$[*****] FOR THE FIRST [*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME BETWEEN [*****] AND
[*****] UNIQUE USER RESUMES US$[*****] FOR EACH UNIQUE USER
RESUME BETWEEN [*****] AND [*****] UNIQUE USER RESUMES
US$[*****] FOR EACH UNIQUE USER RESUME ABOVE [*****] UNIQUE
USER RESUMES
2. PERSONAL ALERT PROFILE ACQUISITION BOUNTIES
IN ANY YEAR: US$[*****] FOR THE FIRST [*****] UNIQUE USER PROFILES
US$[*****] FOR EACH UNIQUE USER PROFILE BETWEEN [*****]
AND [*****]
US$[*****] FOR EACH UNIQUE USER PROFILE AFTER [*****]
3. VIRTUAL CAREER FAIR FEES
YEAR 1: [*****] PERCENT ([*****]%) OF ALL FAIR FEES AFTER FIRST
[*****] CAREER FAIRS
YEAR 2: [*****] PERCENT ([*****]%) OF ALL FAIR FEES AFTER FIRST
[*****] CAREER FAIRS
YEAR 3: [*****] PERCENT ([*****]%) OF ALL FAIR FEES AFTER FIRST
[*****] CAREER FAIRS
YEAR 4: [*****] PERCENT ([*****]%) OF ALL FAIR FEES AFTER FIRST
[*****] CAREER FAIRS
4. TALENT MARKET.
YEAR 1: US$[*****] FOR THE FIRST [*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE ABOVE [*****]
CANDIDATE PROFILES
YEAR 2: US$[*****] FOR THE FIRST [*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE ABOVE [*****]
CANDIDATE PROFILES
YEAR 3: US$[*****] FOR THE FIRST [*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE ABOVE [*****]
CANDIDATE PROFILES
YEAR 4: US$[*****] FOR THE FIRST [*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE BETWEEN [*****] AND
[*****] CANDIDATE PROFILES
US$[*****] FOR EACH CANDIDATE PROFILE ABOVE [*****]
CANDIDATE PROFILES
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5. OTHER (E.G., OTHER CONSUMER SERVICES).
AOL AND ICP WILL NEGOTIATE THE TERMS FOR ANY NEW REVENUE STREAM. AOL
WILL DISCOUNT ITS REVENUE SHARE BY [*****] PERCENT ([*****]%) IN THE
EVENT THAT HURDLE 1 IS NOT MET, BUT HURDLE 2 IS MET.
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