EXHIBIT 10.50
Final Execution
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
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This Interactive Services Agreement (this "Agreement"), effective as of
July 1, 1999 (the "Effective Date"), is made and entered into by and between
America Online, Inc. ("AOL"), a Delaware corporation, with its principal offices
at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000, and xxxxxx.xxx, Inc. ("Interactive
Content Provider" or "ICP"), a Delaware corporation, with its principal offices
at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (each a "Party" and
collectively the "Parties").
INTRODUCTION
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AOL and ICP each desires that AOL provide access to the ICP Internet Site
and ICP Programming through the AOL Network, subject to the terms and conditions
set forth in this Agreement. Defined terms used but not otherwise defined in
this Agreement shall be as defined on Exhibit B attached hereto.
TERMS
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1. DISTRIBUTION; PROGRAMMING
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1.1 Programming and Distribution. Beginning on a mutually agreed upon date
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after the Effective Date, AOL shall provide ICP with the promotions
set forth on Exhibit A-1. The promotions described on Exhibit A-1 and
any other promotions provided by AOL to ICP shall be referred to as
the "Promotions." Subject to ICP's reasonable approval, AOL will have
the right to fulfill its promotional commitments with respect to any
of the foregoing by providing ICP comparable (in terms of the mix of
quality and quantity) promotional placements in appropriate
alternative areas of the AOL Network. 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 (in terms of the mix of quality
and quantity) promotional placement. Except to the extent expressly
described herein, the exact form, placement and nature of the
Promotions shall be determined by AOL in its reasonable editorial
discretion. ICP shall comply with the customization and co-branding
requirements and provide the Content set forth on Exhibit A-3 and
AOL's provision of Promotions in connection with any particular AOL
Property shall be conditioned upon ICP's compliance with the
customization and co-branding requirements and provision of the
Content set forth on Exhibit A-3 for such AOL Property.
1.2 Content. The ICP Programming (a) shall consist of the Content
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described on the programming plan attached as Exhibit A-2 (the
"Programming Plan"), (b) shall not contain any pointers or links to
any other area on or outside the AOL Network, other than as expressly
described on Exhibit A-2 with respect to such ICP Programming without
AOL's prior written consent, and (c) shall not contain any direct
pointers or links to any products or services which ICP sells in
accordance with Section 4.4 below, without AOL's prior written
consent. Notwithstanding the foregoing but subject to Section 5.3, ICP
may include a Link to * * * for * * * purposes so long as (a) such
Links only link to the specific contextually relevant page(s) of such
third party Interactive Site, which such page(s) appear in a "second"
browser window that is smaller than the original ICP browser window,
(b) ICP includes navigational ability within such page(s) for AOL
Members to return to the ICP Internet Site or the applicable AOL
Property, and (c) ICP shall use commercially reasonable efforts to
ensure that such page(s) do not include Links to areas outside of the
ICP Internet Site or to the applicable AOL Property. The ICP Internet
Site shall consist of the Content described on the Programming Plan.
ICP shall inform AOL of relevant search terms and terminology
associated with popular areas and functionality within the ICP
Internet Site and ICP
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designed at * * *. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Programming for AOL's promotional and Content integration purposes.
The inclusion of any additional Content for distribution through the
AOL Network (including, without limitation, any features,
functionality or technology) not expressly described on Exhibit A
shall be subject to AOL's prior written approval. AOL acknowledges
that during the Term of this Agreement, ICP has preexisting
contractual commitments (i.e., existing as of the Effective Date)
which preclude it from (1) providing more than * * * of the content on
the Xx. Xxxx Site (as determined by ICP in accordance with such
contractual limitation) to AOL, and (2) redistributing certain content
on affiliated or co-branded versions of the Xx. Xxxx Site (including
on the ICP Internet Site) (collectively, the "Preexisting
Commitments"); provided that if ICP is precluded from providing
certain Content as provided in the Programming Plan under subsection
(2) of this sentence, ICP shall use commercially reasonable efforts to
provide AOL with comparable replacement Content for distribution in
accordance with the Programming Plan. ICP hereby agrees to use
commercially reasonable efforts to limit such Preexisting Commitments
by either entering into an amendment with the respective third party
to eliminate such Preexisting Commitment, or if ICP is unsuccessful,
not renewing each such Preexisting Commitment. Notwithstanding
anything in this Agreement to the contrary, to the extent any
provision of this Agreement conflicts with the Preexisting
Commitments, the Preexisting Commitments shall take precedence and the
conflicting provision of this Agreement shall be deemed modified, as
minimally as possible, to avoid such conflict; provided that to the
extent any such modification materially adversely effects the ability
of ICP to deliver Content contemplated by Exhibit A and thereby
precludes or restricts AOL from providing ICP with Impressions as
contemplated by Exhibit A (a "Cutback"), AOL's obligations hereunder
(including without limitation meeting the Impressions Target (as
defined below) and providing ICP with the Premier Status (as defined
below)) shall be appropriately reduced. The occurrence of a Cutback
which remains uncured for ten (10) business days or the occurrence of
two or more Cutbacks within any one hundred twenty day period (120)
shall constitute a material breach of this Agreement for which AOL
shall have the right to terminate this Agreement immediately by
providing ICP with written notice within thirty (30) days of AOL's
first knowledge of a Cutback (or the second Cutback in the event of
two or more Cutbacks), subject to AOL's paying ICP the Payback Amount
in accordance with Section 7.2. In addition, AOL hereby agrees to use
reasonable efforts not to display Content of a third party on the AOL
Network in a manner that suggests that ICP endorses Content not
provided by ICP; provided that in such event ICP's sole remedy shall
be to notify AOL of such event, and upon receipt of such notice, AOL
and ICP shall work together in good faith to resolve such matter.
1.3 License. ICP hereby grants AOL a worldwide license to use, market,
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license, store, distribute, reproduce, display, adapt, communicate,
perform, translate, transmit, and promote the ICP Internet Site, the
ICP Programming and the Licensed Content (or any portion thereof)
through the AOL Network as AOL may determine in its sole discretion,
including without limitation the right to integrate Content from the
ICP Internet Site by linking to pages within the ICP Internet Site
and/or ICP Programming by linking to specific areas thereon, provided
that the link to any such Content on the AOL Network shall conform to
the specifications of an ICP Presence. Any Linked ICP Interactive
Sites shall be subject to the foregoing license.
1.4 Management. ICP shall design, create, edit, manage, review, update (on
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a daily basis or as otherwise specified herein), and maintain the ICP
Internet Site, ICP Programming and the Licensed Content in a timely,
well-organized and professional manner and in accordance with the
terms of this Agreement. ICP shall ensure that the Licensed Content
within the ICP Internet Site and ICP Programming is equal to or better
than the Content distributed by ICP through any other ICP Interactive
Site in all material respects, including without limitation, quality,
breadth, timeliness, functionality, features, prices of products and
services and terms and conditions, except to the extent inclusion of
such Content would otherwise violate this Agreement and except as
otherwise expressly stated on Exhibit A. Except as specifically
provided for herein, AOL shall
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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have no obligations of any kind with respect to the ICP Internet Site
or ICP Programming. ICP shall be responsible for any hosting or
communication costs associated with the ICP Internet Site and ICP
Programming (including any Linked Interactive Sites), including,
without limitation, the costs associated with (i) any agreed-upon
direct connections between the AOL Network and the ICP Internet Site
or ICP Programming or (ii) a mirrored version of the ICP Internet
Site. AOL Members shall not be required to go through a registration
process (or any similar process) in order to access and use the ICP
Internet Site, ICP Programming (including any Linked ICP Interactive
Site) or the Licensed Content; provided that with respect to the use
of any ICP Tools, in AOL's sole discretion, an AOL Member may be
required to go through a registration or similar process tied to the
AOL name space technology (e.g., AOL screennames). During the Term and
for the two (2) year period after the expiration or termination
thereof, ICP shall allow AOL Members to access and use any ICP
Interactive Site on terms and conditions no less favorable than the
terms and conditions (e.g., AOL Members shall not be required (1) to
pay subscription fees for Content that is offered to other users for
free, (2) to pay a higher subscription fee than other users, or (3) to
go through a more burdensome registration process than other users)
available to other users of such ICP Interactive Site. In the event
ICP fails to comply with any material term of this Agreement,
including without limitation ICP's obligations under this Section 1.4,
AOL will have the right (in addition to any other remedies available
to AOL hereunder) upon providing ICP notice of such non-compliance
(which notice shall describe such non-compliance in reasonable detail)
to decrease the promotion it provides to ICP hereunder and/or to
decrease or cease any other contractual obligation of AOL hereunder
until such time as ICP corrects its non-compliance, in which event AOL
will be relieved of the proportionate amount of any promotional
commitment made to ICP by AOL hereunder corresponding to such decrease
in promotion. Promptly after ICP corrects its non-compliance, subject
to the preceding sentence, AOL's obligations hereunder shall continue
in full force and effect through the remainder of the Term.
1.5 Impressions Target. AOL shall provide ICP with at least Impressions
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from ICP's presence on the AOL Network (the "Impressions Target"). On
or about each anniversary of the Effective Date, AOL and ICP shall
discuss (a) whether AOL is on track to meet the Impressions Target
(taking into account variations in Impressions delivery (e.g., account
ramp-up, seasonality, promotional events, new Content acquired) of ICP
promotion on the AOL Network) and (b) future plans to ensure that the
Impressions Target is met. AOL shall use reasonable efforts to
implement any such mutually agreed plan in accordance therewith. For
the purposes of this Agreement, ICP's presence on an AOL screen shall
conform to the specifications of an ICP Presence, provided that only
screens that contain a Link to the ICP Internet Site or ICP
Programming will count against the Impressions Target. Any shortfall
in Impressions from a particular AOL Property or area within an AOL
Property may be made up by overdelivery of Impressions in another AOL
Property or area. In the event that the Impressions Target is not met
(or will not, in AOL's reasonable judgment, be met) during the Term,
then as ICP's sole remedy, at AOL's option (i) the Term shall be
extended for up to six (6) months without additional carriage fees
payable by ICP, and during such extension period, AOL shall provide
ICP with the remaining Impressions in the form of advertising space
within the AOL Network of comparable value to the undelivered
Impressions (as reasonably determined by AOL), (ii) AOL shall, from
time to time during the Term, provide ICP with the remaining
Impressions in the form of advertising space within the AOL Network of
comparable value to the undelivered Impressions (as reasonably
determined by AOL), or (iii) some combination thereof. In the event
ICP has a pre-existing contractual arrangement with any third party
Interactive Service, then any impressions guaranteed and actually
provided to such third party Interactive Service in accordance with
such contractual arrangement shall not count towards the Impressions
Target hereunder.
1.6 Premier Status. AOL shall provide to ICP the sole premier rights as
set forth in Exhibit A and in Section 1.6.1(a) below, subject to the
terms of this Section 1.6 (collectively, the "Premier Status"):
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1.6.1 Premier Rights.
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(a) Description. During each contract year of the Term, AOL
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shall not provide any ICP Competitor * * * within the
Restricted Screens ("Health Impressions") (viewed as a
whole across all of the AOL Properties set forth in the
definition of "Restricted Screens" in Exhibit B) * * *.
Nothing contained herein shall be deemed (a) to limit
AOL's rights to sell anchor tenant placement to any ICP
Competitor within the AOL Network (except with respect
to compliance with this Section 1.6.1(a)), (b) to grant
ICP any approval rights with respect to any portion of
any AOL Property or (c) to grant ICP most favored
customer status, any right of first refusal or any
right of first negotiation.
(b) Explicitly Permissible Activities. Notwithstanding
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anything to the contrary in Section 1.6.1(a) (and
without limiting any actions which may be taken by AOL
without violation of ICP's rights hereunder), the
following Links to ICP Competitor Content (including
Links on Interactive Sites of an ICP Competitor) from
the Restricted Screens shall not be deemed to count as
Health Impressions for purposes of Section 1.6.1(a):
(i) any Links specifically promoting Content which is
not provided by ICP or promoting a particular sub-
category within the comprehensive general purpose
consumer-oriented health Content category (e.g.,
illnesses, treatments, weightloss, alternative
medicine, public health, etc.); (ii) any Links which
AOL is required to provide pursuant to existing
arrangements with third parties (or pursuant to any
agreements to which AOL becomes a party subsequent to
the Effective Date as a result of Change of Control,
merger, acquisition or other similar transaction);
(iii) any Links to or within any health-related
information database or directory on any Restricted
Screen (e.g., the Conditions & Treatments database
within the Health Channel on the AOL Service); (iv) any
Links for advertising (e.g., banners, buttons, links,
sponsorships), including standard placements in any
shopping area or channel, to any ICP Competitor; (v)
any Links in connection with an arrangement with any
third party for the primary purpose of acquiring AOL
Members whereby such party is allowed to promote or
market products or services to AOL Members that are
acquired as a result of such agreement; or (vi) any
Links for contextual, editorial and/or member
experience reasons so long as AOL does not receive cash
consideration for such Links .
(c) Remedy. In the event that in any contract year during
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the Term, * * * then as ICP's sole remedy, at AOL's
option either, (a) for a shortfall in any such contract
year except the final contract year, AOL shall, in the
subsequent contract year, provide ICP with additional
Impressions to make up the previous year's shortfall in
the form of advertising space within the AOL Network,
or (b) for a shortfall in the final contract year of
the Term, the Term shall be extended for up to six (6)
months without additional carriage fees payable by ICP,
and, during such extension period, AOL shall provide
ICP with additional Impressions to make up the previous
year's shortfall in the form of advertising space
within the AOL Network. Within thirty (30) days after
each anniversary of the Effective Date, AOL shall
provide ICP with a written certification of AOL's
compliance with Section 1.6.1(a). In addition, in the
event that AOL reasonably determines during any
contract year that * * * then AOL shall promptly notify
ICP and work with ICP to develop a plan to make up any
shortfall in Impressions. In addition to the remedies
set forth in this Section 1.6.1(a), * * * ICP shall
have the right to escalate such event to the Management
Committee.
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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1.6.2 Conditions to and Restrictions on Premier Status. AOL's
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provision of the Premier Status is subject to the following
conditions and restrictions:
(a) AOL's provision of the Premier Status to ICP is
contingent upon ICP's performance of all material
obligations and compliance with all material conditions
set forth in this Agreement, including without
limitation, ICP's payment of all fees, and AOL shall
have the right, upon providing ICP notice of such any
breach of any such obligation or condition (which such
notice shall describe such breach in reasonable detail),
to terminate, in whole or in part, ICP's Premier Status,
AOL's promotional obligations hereunder and the
programming rights granted to ICP hereunder until such
time as ICP corrects such breach, in which event AOL
will be relieved of the proportionate amount of any
promotional commitment made to ICP by AOL hereunder
corresponding to such decrease in promotion. Promptly
after ICP cures such breach, subject to the preceding
sentence, AOL's obligations hereunder shall continue in
full force and effect through the remainder of the Term.
(b) AOL shall have the right to terminate, in whole or in
part, the Premier Status, AOL's promotional obligations
hereunder and the programming rights granted to ICP
hereunder if :
(i) * * *
(ii) At any time the Xx. Xxxx Site is not one of the
top * * * ranked health Content and tools
Interactive Sites for at least * * * consecutive
months in terms of both traffic (as measured by
page views) and audience reach (as measured by
share or percentage of Internet online users)
based on statistics as reported by Media Metrix
or similar organization reasonably determined by
the Parties;
(iii) At any time the Xx. Xxxx Site is not one of the
top * * * health Content and tools Interactive
Sites for at least * * * consecutive months, in
terms of quality (x) based on a cross-section of
independent third-party reviewers who are
recognized authorities in the healthcare
industry, and (y) with respect to all material
quality averages or standards in such industry,
including without limitation, quality, breadth,
depth, timeliness, accuracy, reliability of the
Content; privacy and security; functionality,
features, ease of use and user interface of the
site; and prices and terms and conditions of
Products offered on the site;
(iv) A Preexisting Commitment materially adversely
effects the ability of ICP to deliver Content
contemplated by Exhibit A and thereby precludes
or restricts AOL from providing ICP with
Impressions as contemplated by Exhibit A; or
(v) A Change of Control of ICP.
(c) Any partial or whole termination by AOL under this
Section 1.6.2 shall be done within thirty (30) days of
the date on which AOL becomes aware of the event giving
rise to the termination right; provided that if AOL
fails to exercise its termination right within such
thirty period (30) day period, AOL shall be deemed to
have waived its termination rate only with respect to
such event but not to any subsequent event which
triggers a termination right under this Section 1.6.2.
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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1.6.3 Keywords. During the Term and subject to ICP's compliance with
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the other terms and conditions of this Agreement, ICP shall
have the right to use the following Keyword Search Term (and
mutually agreed variations thereof) to link to the ICP Internet
Site: "Xx. Xxxx."
2. CROSS-PROMOTION
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2.1 Cooperation. Each Party shall cooperate with and reasonably assist
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the other Party in supplying material for marketing and promotional
activities.
2.2 Interactive Site. Within each ICP Interactive Site, ICP shall include
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the following (collectively, the "AOL Promos"): (i) a prominent
promotional button * * * , with placement of the button at ICP's
reasonable discretion, on the first screen of the ICP Interactive
Site, to promote such AOL products or services as AOL may designate
(for example, the America Online brand service, the CompuServe brand
service, the XXX.xxx site, the Digital City services or the AOL
Instant Messenger service); provided that AOL shall not require ICP to
promote an AOL Property that directly competes with ICP's core
business (i.e., the provision of health related content and services);
and (ii) a prominent "Try AOL" feature * * * , with placement at ICP's
reasonable discretion, through which users can obtain promotional
information about AOL products or services designated by AOL and, at
AOL's option, download or order the then-current version of client
software for such AOL products or services. AOL will provide the
creative content to be used in the AOL Promos. 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 business days of its
receipt of such content from AOL. In the event that AOL elects to
serve the AOL Promos to the ICP Interactive Site from an ad server
controlled by AOL or its agent, ICP shall take all reasonable
operational steps, at AOL's expense, 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 each ICP
Interactive Site, ICP shall provide prominent promotion for relevant
AOL Keyword Search Terms associated with the ICP Internet Site and
links from the ICP Interactive Site to the relevant topic areas on
AOL's XXX.xxx site. In the event ICP determines that there is a
specific instance in which the AOL promotion or integration set forth
in this Section 2.2 shall not be possible nor commercially reasonable,
then ICP shall provide AOL with prior notice of such instance and
obtain AOL's prior written consent (which consent will not be
unreasonably withheld) before running any such promotion or not
integrating such AOL product.
2.3 Component Products. ICP hereby agrees that to the extent ICP wishes to
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integrate, use and/or promote the tools and functionality in the
categories set forth in Exhibit D-1 hereto (the "Integrated Tools and
Functionality Categories") into the Xx. Xxxx Site, ICP Internet Site,
ICP Interactive Site and ICP Tools (a) ICP shall integrate, use and
promote AOL's tools and functionality in such categories into the Xx.
Xxxx Site, ICP Internet Site, ICP Interactive Site and ICP Tools (as
appropriate) and (b) that ICP shall not integrate, use or promote its
own or any other third party's tools and/or functionality in such
categories into the Xx. Xxxx Site, ICP Internet Site, ICP Interactive
Site and ICP Tools; provided, however, that with respect to Web-hosted
calendaring and real time instant online messaging (as such are
described in Exhibit D-1), ICP shall only be obligated to integrate
such AOL tools and functionality to the extent they are * * *. Within
sixty (60) days of the Effective Date, the Parties shall agree upon
the terms of such integration, use and promotion of such AOL tools and
functionality. Notwithstanding the foregoing, in the event that ICP
wishes to include any specific tool and/or functionality within a
subcategory of those categories set forth in Exhibit D-1 which AOL
does not then-currently offer, ICP shall have the right to develop, or
have a third party develop, such specific tool and/or functionality to
be integrated within the Xx. Xxxx Site, ICP Internet Site, ICP
Interactive Site and
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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ICP Tools (as appropriate); provided that ICP first provides AOL with
the opportunity to do such development work on commercially reasonable
terms and conditions. In the event ICP wishes to integrate, use or
promote any tools and functionality in the categories set forth in
Exhibit D-2 hereto (the "Additional Tools and Functionality
Categories") into the Xx. Xxxx Site, the ICP Internet Site, ICP
Interactive Site and/or the ICP Tools, ICP shall either use its own
tools and functionality or the tools and functionality in such
categories which are offered by AOL to the extent such AOL tool and
functionality are competitive in the marketplace; provided that ICP
shall not integrate, use and/or promote the tools and functionality of
any third party without the prior written consent of AOL, which AOL
may withhold in its sole discretion.
2.4 Other Media. In all of ICP's television, radio, print and "out of
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home" (e.g., buses and billboards, point of purchase and other "place-
based" promotions) advertisements and in any publications, programs,
features or other forms of media over which ICP exercises at least
partial editorial control, ICP will include specific references or
mentions (orally where possible) of the availability of the ICP
Internet Site through the America Online brand service (or other AOL
Property as mutually agreed to by the Parties). All such references or
mentions of AOL, and the use of AOL's trademarks, trade names and
service marks in connection therewith, shall be in accordance with
Section II of Exhibit C. In the event ICP determines that there is a
specific instance in which such AOL promotional reference shall not be
possible nor commercially reasonable, then ICP shall provide AOL with
prior notice of such instance and obtain AOL's prior written consent
(which consent will not be unreasonably withheld) before running any
such promotion.
2.5 Availability of Xx. Xxxx. ICP will make available Dr. C. Xxxxxxx Xxxx
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(the former U.S. Surgeon General) from time to time, subject to Xx.
Xxxx'x schedule and reasonable approval by Xx. Xxxx personally and
ICP, for joint AOL-Xx. Xxxx or AOL-only health-related public
relations campaigns, announcements and marketing events.
2.6 Preferred Access Provider. When promoting AOL, ICP shall promote AOL
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(or, in AOL's discretion, an AOL Affiliate) as the preferred narrow-
band access provider through which a user can access the ICP Internet
Site (and ICP shall not implement or authorize any other promotions on
behalf of any third parties which are inconsistent with the
foregoing).
2.7 Inadvertent Breaches. AOL acknowledges and agrees that occasional
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inadvertent breaches of this Section 2 by ICP occurring from time to
time shall not be deemed a material breach of this Agreement so long
as ICP uses commercially reasonable efforts to cure any such
inadvertent breach promptly after receiving notice of such breach from
AOL; provided further however that if such inadvertent breaches occur
on more than an occasional basis and/or are not inadvertent (as
determined by AOL in its reasonable discretion), such multiple
breaches shall constitute a material breach of this Agreement.
3. REPORTING; PAYMENT; REVENUE SHARING; INVESTMENT.
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3.1 AOL Usage and ICP Advertisement Sales Reporting. AOL shall make
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available to (or otherwise provide) ICP a monthly report or reports
specifying (a) for the prior month aggregate usage and Impressions
with respect to ICP's presence on the AOL Network, which are similar
in substance and form to the reports provided by AOL to other content
partners similar to ICP, and (b) sales of ICP Advertisements for the
prior month.
3.2 ICP Internet Site Reporting. ICP will supply AOL with monthly reports
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which reflect total impressions by AOL Members to the ICP Internet
Site during the prior month, the number of and dollar value associated
with the transactions involving AOL Members and any registration
information obtained from AOL Members at the ICP Internet Site during
the period in question. ICP represents that all URLs related to the
ICP Internet Site are listed on Exhibit A-2 and ICP shall provide AOL
with an update of such list promptly upon any change thereto.
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3.3 Cross-Promotional Commitments. ICP shall provide to AOL a quarterly
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report documenting its compliance with any promotional commitments it
has undertaken pursuant to this Agreement in the form attached as
Exhibit E hereto, and ICP shall provide AOL with "click-through" data
and the number of impressions to the pages containing the AOL Promos
with respect to the promotions specified in Section 2 for the prior
quarter.
3.4 Carriage and Promotional Fee. ICP shall pay AOL * * * (collectively,
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the "Guaranteed Payment").
3.5 Qualified New Members. AOL shall pay ICP a fee of * * * for each
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Qualified New Member acquired through ICP's compliance with * * *. A
"Qualified New Member" shall mean any person or entity who registers
for the AOL Service during the Term (defined below) using ICP's
special promotion identifier and who pays the then-standard fees
required for membership to the AOL Service through at least two (2)
consecutive billing cycles (excluding any free trial period).
3.6 Advertising. To the extent AOL expressly permits ICP or its agents
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to sell Advertisements, ICP shall provide detailed information to AOL
regarding (i) such Advertisements sold by ICP or its agents and (ii)
any advertising or promotional activity on the ICP Internet Site and
any Linked ICP Interactive Sites. In reporting any advertising
arrangement, ICP shall indicate the name of the advertiser, the terms
of the advertising arrangement and the amount paid (or to be paid) to
ICP or its agents.
3.7 Payments Terms. AOL shall pay all amounts owed to ICP hereunder on a
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quarterly basis, within thirty (30) days of the end of each calendar
quarter. All payments by ICP hereunder shall be paid in immediately
available, non-refundable U.S. funds wired to the "America Online"
account, * * * or such other account of which AOL shall give ICP
written notice.
3.8 Alternative Revenue Streams. In the event ICP or any of its affiliates
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creates or desires to create, as a direct result of any Promotions,
any new revenue stream as a result of such Promotions other than
Advertising Revenues and Transaction Revenues (an "Alternative Revenue
Stream"), ICP will promptly inform AOL in writing of ICP's desire to
market Products and/or services through the AOL Service, XXX.xxx,
Netscape Netcenter, the CompuServe Service, XxxxxXxxxx.xxx, and/or
Digital City, which would produce an Alternative Revenue Stream, and
the Parties will negotiate in good faith regarding whether ICP will be
allowed to market such new Products and/or services through the
Promotions, and if so, the equitable portion of revenues from such
Alternative Revenue Stream (if applicable) that will be shared with
AOL pursuant to this Agreement.
3.9 Warrants. ICP shall grant to AOL three (3) separate warrants to
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purchase shares of common stock of ICP, forms of which are attached
hereto as Exhibits H, I and J. In accordance with the terms and
conditions contained therein, the three warrants which shall be
executed and delivered contemporaneously herewith shall provide as
follows:
3.9.1 in partial consideration for AOL's execution and delivery of
this Agreement, ICP shall grant to AOL a fully-vested
warrant (the "Time Warrant") to purchase up to 1,570,932
shares of common stock of ICP ("Common Stock") at an
exercise price of $15.94 per share;
3.9.2 in partial consideration for the accomplishment of certain
Page View thresholds, ICP shall grant to AOL a warrant (the
"Page View Warrant") to purchase up to 1,570,932 shares of
Common Stock at an exercise price of $20.00 per share, which
Page View Warrant shall vest in accordance with its terms;
and
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
8
3.9.3 in partial consideration for the accomplishment of certain
PMR Acquisitions, ICP shall grant to AOL a warrant (the
"PMRA Warrant") to purchase up to 2,749,131 shares of Common
Stock at variable exercise prices, which PMRA Warrant shall
vest in accordance with its terms.
4. ADVERTISING AND MERCHANDISING
------------------------------
4.1 Advertising Sales on AOL Network. AOL owns all right, title and
--------------------------------
interest in and to the advertising and promotional spaces within the
AOL Network (including, without limitation, advertising and
promotional spaces on any AOL forms or pages preceding or framing the
ICP Internet Site or ICP Programming and any AOL pages on which ICP
Programming resides). The specific advertising inventory within any
such AOL forms or pages shall be as reasonably determined by AOL.
4.2 Advertising Sales on the ICP Internet Site and the Xx. Xxxx Site.
----------------------------------------------------------------
During the Term, except to the extent provided below, AOL shall have
the exclusive right to license or sell all promotions, advertisements,
Links, pointers, sponsorships or similar services or rights (including
without limitation commerce and anchor-tenancy deals)
("Advertisements") on or through the ICP Internet Site and the
generally publicly available Xx. Xxxx Site currently located at
URL:xxxx://xxxxxx.xxx and all related URLs (excluding any third party
affiliated versions of such site (e.g., customized, mirrored, private
labeled sites)) (together with those Advertisements for which AOL has
exclusive rights pursuant to the next sentence, the "ICP
Advertisements"). With respect to each third party affiliated version
of the Xx. Xxxx Site (e.g., customized, mirrored, private labeled
sites), if the respective third party does not wish to sell
Advertisements on or through such site, then ICP shall promptly notify
AOL of such fact and AOL shall have the exclusive right to license or
sell all Advertisements on or through such site in accordance with
this Section 4.2. AOL shall use its ad serving technology for the ICP
Advertisements and 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 Xx. Xxxx Site and ICP Internet Site on which the ICP
Advertisements will appear. With respect to each license or sale of an
ICP Advertisement for cash consideration, AOL shall be entitled to
retain * * * of the Advertising Revenues generated therefrom and shall
pay the remaining * * * to ICP. During the Term from time to time, ICP
shall have the right to license and sell a mutually agreed percentage
of total inventory available for ICP Advertisements on the ICP
Internet Site and the Xx. Xxxx Site which such inventory shall be used
in a mutually agreeable manner (e.g., house ads). In the event AOL
notifies ICP that it no longer desires to license and sell ICP
Advertisements, the Parties shall mutually agree on an appropriate
revenue share of Advertising Revenues; provided that if the Parties
are unable to agree on such revenue share, either Party shall have the
right to escalate such matter to the Management Committee for
resolution. The revenue share (as mutually agreed or determined by the
Management Committee) shall apply to the remainder of the Term. For so
long as AOL maintains the exclusive right to license and sell the
inventory available for ICP Advertisements on the ICP Internet Site
and the Xx. Xxxx Site as set forth above, AOL shall include such
inventory in AOL's overall available inventory across the AOL
Properties.
4.3 Advertising Policies. AOL shall use commercially reasonable efforts to
--------------------
abide by ICP's standard advertising policies in performing its rights
under this Section 4.2 to the extent such advertising policies do not
conflict with AOL's advertising policies; provided that in the event
of any conflict, the Parties shall meet to discuss how to reconcile
such conflict; provided further that in no event will AOL license or
sell ICP Advertisements which promote * * *. To the extent AOL
expressly permits ICP or its agents to sell an Advertisement, such
Advertisement sold by ICP or its agents shall be subject to AOL's
then-standard advertising policies, and ICP shall not sell an AOL
Advertisement to any entity reasonably construed to be in competition
with AOL or in a category
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
9
in which AOL or the applicable AOL Property has an exclusive or other
preferential relationship. Further ICP shall ensure that any ICP
Advertisement sold by ICP complies with all applicable federal, state
and local laws and regulations .
4.4 Interactive Commerce. To the extent ICP directly sells any
--------------------
merchandising through the ICP Internet Site and/or ICP Programming,
such merchandising shall be subject to (i) the then-current
requirements of AOL's merchant certification program, and (ii) AOL's
standard terms and conditions applicable to its interactive marketing
partners In the event AOL objects to any products, goods or services
offered thought the ICP Internet Site and/or the ICP Programming, AOL
shall notify ICP of those products, goods or services to which AOL
objects, and ICP hereby agrees to discontinue offering such products,
goods or services through the ICP Internet Site and/or the ICP
Programming upon receipt of such notice. ICP will take all reasonable
steps necessary to conform its promotion and sale of Products through
the ICP Internet Site and ICP Programming (if any) to the then-
existing technologies identified by AOL which are optimized for the
applicable AOL Property including, without limitation, any "quick
checkout" tool which AOL may implement to facilitate purchase of
Products by AOL Members through the ICP Internet Site. ICP shall not
conduct any merchandising through the ICP Internet Site or ICP
Programming through auctions, clubs or any method other than a direct
sales format without AOL's prior written consent. ICP will provide AOL
with a monthly report in a mutually agreed upon format to be delivered
to AOL in an automated manner, detailing the sales activity during
such period. These sales reports shall contain information
substantially similar to the following (and any other information
reasonably required for measuring revenue activity by ICP through the
ICP Internet Site(s) or reasonably requested by AOL): (i) summary
sales information by day (date, number of Products, number of orders,
total Transaction Revenues); and (ii) detailed sales information
(order date/timestamp (if technically feasible), purchaser name and
screen-name, SKU or Product description). Further, ICP will generally
promote through the ICP Internet Site any special or promotional
offers made available by or on behalf of ICP through any ICP
Interactive Site or any other distribution channel. In addition, ICP
shall promote through the ICP Internet Site on a regular and
consistent basis special offers exclusively available to AOL Members
("AOL Exclusive Offers"). ICP shall, at all times, feature at least
one AOL Exclusive Offer for AOL Members (except as otherwise mutually
agreed upon by the Parties). The AOL Exclusive Offer made available by
ICP shall provide a substantial member benefit to AOL Members, either
by virtue of a meaningful price discount, product enhancement, unique
service benefit or other special feature. ICP will provide AOL with
reasonable prior notice of AOL Exclusive Offers and other special
offers so that AOL can, in its editorial discretion, market the
availability of such offers.
5. CUSTOMIZED ICP PROGRAMMING AND ICP INTERNET SITE
------------------------------------------------
5.1 Performance. ICP shall optimize all ICP Programming and the ICP
-----------
Internet Site for distribution hereunder according to AOL
specifications and guidelines (including, without limitation, any HTML
publishing guidelines) and the Operating Standards set forth on
Exhibit F attached hereto.
5.2 Customization. ICP shall customize all ICP Programming and the ICP
-------------
Internet Site for AOL Members as follows:
5.2.1 ICP shall customize and co-brand the ICP Internet Site for
distribution over certain AOL Properties as more particularly
described on Exhibit A-3. The customization and co-branding
described in Exhibit A-3 represents the manner in which AOL
currently contemplates that such customization and co-branding
will appear. ICP shall make any reasonable changes to the
customization and/or co-branding requirements of any AOL
Property that may occur during the Term.
5.2.2 ICP shall ensure that AOL Members accessing the ICP Programming
or linking to the ICP Internet Site do not receive
advertisements, promotions or links for the benefit of any
Interactive Service (excluding an Interactive Service whose
primary business is the
10
provision of health and/or medical related Content to the
public and/or private sector), or otherwise in violation of the
applicable AOL Property's then-standard advertising policies.
In addition, ICP shall use commercially reasonable efforts to
not promote products, goods or services within the ICP
Programming or on the ICP Internet Site in a category in which
AOL or the applicable AOL Property has an exclusive or other
preferential relationship.
5.2.3 ICP shall provide continuous navigational ability for AOL
Members to return to an agreed-upon point on the applicable AOL
Property (for which AOL shall supply the proper address) from
ICP Internet Site or ICP Programming (e.g., the point on the
applicable AOL Property from which such site is linked), which,
at AOL's option, may be satisfied through the use of a hybrid
browser format. ICP shall ensure that navigation back to the
AOL Network from the ICP Internet 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.
Rather, such AOL traffic shall be pointed directly back to the
AOL Network as designated by AOL.
5.3 Links on ICP Internet Site. The Parties will work together on mutually
--------------------------
acceptable links (including links back to AOL) within the ICP Internet
Site in order to create a robust and engaging AOL Member experience.
ICP shall ensure that AOL traffic is either kept within the ICP
Internet Site or ICP Programming or channeled back into the AOL
Network. To the extent that AOL notifies ICP in writing that, in AOL's
reasonable judgment, links from the ICP Internet Site or ICP
Programming cause AOL traffic to be diverted outside of such site and
the AOL Network in a manner that has a detrimental effect on the
traffic flow of the AOL audience, then ICP shall immediately remove
the links out of such site(s). In the event that ICP cannot or does
not so limit diverted traffic from such site, AOL reserves the right
to terminate such links from the AOL Network to such site.
5.4 Review. Subject to ICP's standard written privacy and security
------
policies, ICP shall allow appropriate AOL personnel to have access to
ICP Programming and the ICP Internet Site to the extent necessary to
determine ICP's compliance with the provisions of this Section 5.
6. PARTNER MARKETING
-----------------
During the 90 day period following the Effective Date, ICP shall use
commercially reasonable efforts to provide AOL with information and data
reasonably requested by AOL for determining the feasibility and likely
success of a marketing test for AOL and CompuServe CD-ROM distribution. In
the event that, at any time during the Term, ICP proposes to market, or
proposes to enter into an agreement with, or solicit, a third party with
respect to the marketing of, an Interactive Service (e.g., through a CD ROM
distribution or otherwise) other than the AOL Service and the CompuServe
Service, then ICP shall notify AOL and offer AOL the right of first
negotiation for ICP to market the AOL Service and CompuServe, upon terms to
be mutually agreed to by the Parties after good faith negotiations. In the
event that AOL fails to accept the offer to exercise such right of first
negotiation within thirty (30) days after ICP makes such offer to AOL, then
ICP and AOL shall reduce to writing the latest terms on which ICP was
willing to offer AOL the right to market exclusively the AOL Service and/or
CompuServe Service, after good faith negotiations between AOL and ICP. * *
*. AOL shall have thirty (30) days from the date it receives such revised
offer to accept or reject such revised offer. Failure by AOL to notify ICP
of its acceptance or rejection of such revised offer within the thirty (30)
day period shall be deemed a rejection of such revised offer. The rights
granted to AOL in this Section 6 shall be irrevocable during the Term of
this Agreement.
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
11
7. TERM, TERMINATION, SITE AND CONTENT PREPARATION, PRESS RELEASES.
-----------------------------------------------------------------
7.1 Term. Unless earlier terminated as set forth herein, the initial term
----
of this Agreement shall commence on the Effective Date and expire four
(4) years from the Effective Date (the "Initial Term"). AOL shall have
the right to extend this Agreement for three (3) additional two (2)
year periods (each, an "Extension Term"). During each Extension Term:
(i) ICP will not be required to pay the Guaranteed Payments set forth
in Section 5.4; (ii) AOL will not be required to undertake any
promotional/placement obligations hereunder (including without
limitation any obligations with respect to ICP's Premier Status);
(iii) within thirty (30) days of the end of each quarter during the
Extension Term, ICP shall pay AOL * * * of all Transaction Revenues
generated during such quarter; and (iv) all other terms and conditions
of this Agreement shall remain in full force and effect during such
Extension Term. Upon the expiration or earlier termination of this
Agreement, AOL may, at its discretion, continue to promote one or more
"pointers" or links from the AOL Network to an ICP Interactive Site
and continue to use ICP's trade names, trade marks and service marks
in connection therewith (collectively, a "Continued Link"). So long as
AOL maintains a Continued Link, within thirty (30) days of the end of
each quarter in which AOL maintains a Continued Link, ICP shall pay
AOL * * * of Net Revenues generated during such quarter;"".
7.2 Termination for Breach. Either Party may terminate this Agreement at
----------------------
any time in the event of a material breach by the other Party which
remains uncured after thirty (30) days written notice thereof. * * * .
7.3 Buy-Out Right. At any time during the forty-five day period beginning
-------------
thirty (30) months after the Effective Date (the "Buy-Out Period"),
AOL shall have the right to terminate this Agreement by providing ICP
written notice (the "Buy-Out Right"). In the event AOL elects to
exercise its Buy-Out Right, AOL shall pay ICP * * * within thirty (30)
days of the date of such exercise.
7.4 Solvency Termination Rights. AOL shall have the right to terminate
---------------------------
this Agreement in the event of one of the triggering events as set
forth below (each a "Solvency Trigger Event"):
7.4.1 ICP has unpaid obligations to AOL or any third party which ICP
is not disputing in good faith in excess of * * * (in the
aggregate); or
7.4.2 The sum of ICP's "cash," "marketable securities" and available
credit, credit lines and capital commitments falls below * * *
in any quarter as such are reported in ICP's Form 10-Q.
Prior to terminating under this Section 7.4, AOL shall provide ICP
with written notice to ICP, and ICP shall have fifteen (15) business
days to cure and provide AOL with written certification of such cure
to AOL; provided that with respect to Section 7.4.2, ICP shall be able
to cure by obtaining binding commitments from investors (reasonably
satisfactory to AOL) to make up any such shortfall from the * * *
threshold. In addition, whether or not AOL exercises its termination
right under this Section 7.4, upon the occurrence of a Solvency
Trigger Event which has not been cured by ICP as provided above, by
providing written notice of default to ICP, (a) the remaining unpaid
portion of the Guaranteed Payment shall accelerate and become
immediately due and payable, and (b) AOL shall have the ongoing right
to retain ICP's portion of Advertising Revenues to the extent ICP is
delinquent in any such accelerated Guaranteed Payment.
7.5 Special Termination by AOL. AOL shall have the right to terminate this
--------------------------
Agreement immediately by providing ICP written notice (a) in the event
any claim or proceeding is brought against ICP for professional
negligence or wrongdoing, including without limitation, regarding
malpractice or practicing medicine without the appropriate license(s),
which claim appears on its face to be potentially meritorious or
appears to have the potential for significantly damaging
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
12
or tarnishing the reputation of the ICP or AOL; (b) in the event of
any act, omission, event or other cause that would allow AOL to
terminate the Development and Services Agreement; provided that all
proper notice and cure periods (if applicable) are given, and provided
that AOL terminates the Development and Services Agreement, or (c)
upon any event giving rise to a material claim for indemnification by
ICP hereunder based upon ICP's content or ICP Programming, provided
that any such termination right is exercised within ninety (90) days
after the circumstance giving rise to such right of termination.
7.6 Termination for Bankruptcy/Insolvency or Changes in Business. 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.
7.7 Termination on Change of Control.
--------------------------------
7.7.1 In the event of a Change of Control of ICP to a Named Entity
(identified as such on the date that the related definitive
agreement was entered into) during the Initial Term or any
Extension Term, AOL shall have the right to terminate the
Agreement by providing thirty (30) days prior written notice.
7.7.2 In the event of a Change of Control of ICP to any third party
other than a Named Entity during the Initial Term or any
Extension Term, AOL shall not have the right to terminate the
Agreement; provided however that upon the effective date of
such Change of Control, (i) the * * * , and (ii) ICP's Premier
Status as set forth in Section 1.6.1 shall terminate.
7.7.3 In the event of a Change of Control of AOL during the Initial
Term or any Extension Term, AOL shall have the right to
terminate the Agreement by providing thirty (30) days prior
written notice; provided that within thirty (30) days of such
notice, AOL shall * * *.
7.7.4 Any termination right arising under this Section 7.7. must be
exercised within sixty (60) days of the effective date of such
Change of Control.
7.8 Site and Content Preparation. ICP shall achieve Site and Content
----------------------------
Preparation within seventy-five (75) days after the Effective Date.
"Site and Content Preparation" shall mean that ICP shall have
completed all necessary production work (including completion of all
necessary training for AOL's proprietary "Rainman" publishing tool)
for the ICP Internet Site, all ICP Programming and any other related
areas or screens (including programming all Content thereon);
customized and configured the ICP Internet Site, and all ICP
Programming in accordance with this Agreement; and completed all other
necessary work (including, without limitation, undergone all AOL site
testing set forth on Exhibit F) to prepare the ICP Internet Site, all
ICP Programming and any other related areas or screens to launch on
the AOL Network as contemplated hereunder. In the event ICP has not
achieved Site and Content Preparation within seventy-five (75) days
after the Effective Date, then in addition to any other remedies
available, the Impressions Target set forth in Section 1.5 and the
Page View thresholds set forth in the Page View Warrant shall be
reduced on a pro rata basis by multiplying the Impressions Target or
the Page View thresholds, as the case may be, by a fraction (A) the
numerator of which shall be the number of days after such seventy-five
(75) day period (as adjusted by any step-back as provided in the last
sentence of this paragraph) after which the Company accomplishes Site
and Content Preparation and (B) the denominator of which shall be 365.
In the event ICP has not achieved Site and Content Preparation within
ninety (90) days after the Effective Date, then in addition to any
other remedies available, AOL shall have the right to terminate, in
whole or in part, ICP's Premier Status, AOL's promotional obligations
hereunder
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
13
and the programming rights granted to ICP hereunder. If ICP
is delayed in achieving Site and Content Preparation due to a failure
by AOL to perform its obligations under this Agreement and ICP
notifies AOL in writing of such failure and the resulting delay, then
the seventy-five (75) day and ninety (90) day periods referenced in
this Section shall each be extended by the amount of time of ICP's
delay solely attributable to such failure by AOL.
7.9 Press Releases. Each Party will submit to the other Party, for its
--------------
prior written approval, which will not be unreasonably withheld or
delayed, any press release or any other public statement ("Press
Release") regarding the transactions contemplated hereunder.
Notwithstanding the foregoing, either Party may issue Press Releases
and other disclosures as required by law or as reasonably advised by
legal counsel without the consent of the other Party and in such
event, the disclosing Party will provide at least five (5) business
days prior written notice of such disclosure (unless a shorter period
is required by an applicable legal requirement). The failure to obtain
the prior written approval of the other Party shall be deemed a
material breach of this Agreement, whereby the non-breaching Party may
terminate, in whole or in part, ICP's Premier Status, AOL's
promotional obligations hereunder and the programming rights granted
to ICP hereunder or terminate this Agreement immediately following
written notice to the other Party, and the cure provision of Section
6.2 of this Agreement shall not apply.
8. FUTURE DISCUSSIONS
------------------
So long as ICP is entitled to Premier Status under this Agreement: if (a)
AOL wishes to present an opportunity to a third party with respect to (i)
any subsequently acquired, created or developed AOL brands or platforms
(e.g., any AOL broadband initiatives) or (ii) any AOL brands or platforms
not included in the carriage plan attached hereto as Exhibit A-1 (e.g.,
ICQ, AOL International, or MovieFone) and (b) AOL wishes to offer such
opportunity to an ICP Competitor (an "Additional Opportunity"), then AOL
shall also give ICP notice of such opportunity and the general terms and
conditions of such opportunity. For forty-five (45)days after AOL provides
such notice to ICP, (A) ICP shall have the non-exclusive right to negotiate
with AOL regarding such opportunity and (B) AOL will not enter into an
definitive written agreement with an ICP Competitor regarding such
opportunity. If the Parties have not executed a definitive written
agreement incorporating the terms and conditions of such opportunity within
such forty-five (45) day period, AOL shall have the right to enter into an
agreement regarding the opportunity with any other third party, including
an ICP Competitor. An Additional Opportunity shall not include
opportunities or any programming or commerce that ICP is not, in AOL's
reasonable judgment, able to provide at a level commensurate with the
programming or commerce which can be provided by the ICP Competitor to
which AOL wishes to offer such opportunity. In addition, an Additional
Opportunity shall not include arrangements entered into by any Affiliate.
With respect to any Additional Opportunity granted to ICP pursuant to this
Agreement, once AOL has provided ICP with an Additional Opportunity related
to a particular AOL brand, platform or AOL Property in accordance with
foregoing procedure, AOL shall have no further obligation to ICP with
respect thereto for such agreement. In addition, during the forty-five
(45) day period following the Effective Date, ICP and AOL shall enter into
good faith discussions regarding the possible co-location of ICP servers at
AOL's facilities.
9. TERMS AND CONDITIONS. The terms and conditions set forth on the Exhibits
--------------------
attached hereto are hereby made a part of this Agreement.
14
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
AMERICA ONLINE, INC. xxxxxx.xxx, Inc.
By: By:
----------------------- -----------------------
Print Name: Print Name:
--------------- ---------------
Title: Title:
-------------------- ---------------------
Date: Date:
-------------------- ---------------------
Tax ID/EIN#:
---------------
15
EXHIBIT A
---------
Exhibit A-1: Carriage Plan
Four Year Term
Channel Area Type Impressions
------------------------------------------------------------------------------------------------------------------------
Level One: Content * * *
Integration
------------------------------------------------------------------------------------------------------------------------
AOL, XXX.xxx, CompuServe, Health As detailed in attached Permanent placements and
Netcenter, Digital City programming plans integrated content
(Exhibit A-2)
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Level Two: Contextual All placements listed * * *
Integration below are rotations, not
permanent links
------------------------------------------------------------------------------------------------------------------------
AOL Lifestyles Womens, Self-improvement, Contextual links
Ages & Stages
------------------------------------------------------------------------------------------------------------------------
Families Relevant area TBD Contextual links
------------------------------------------------------------------------------------------------------------------------
Interests Food - Healthy Eating Contextual links
------------------------------------------------------------------------------------------------------------------------
Shop@AOL Health & Beauty Rotational contextual link
------------------------------------------------------------------------------------------------------------------------
Travel Relevant area TBD Contextual link
------------------------------------------------------------------------------------------------------------------------
Workplace Health & medical Integrated feature text
community group
------------------------------------------------------------------------------------------------------------------------
Sports Injury screen Contextual integration
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
XXX.xxx Womens Health, Fitness Contextual link
------------------------------------------------------------------------------------------------------------------------
International; Overseas health Integrated content
precautions
------------------------------------------------------------------------------------------------------------------------
Travel Overseas health Integrated content
precautions
------------------------------------------------------------------------------------------------------------------------
Research & Learn Health & Medical Contextual link
Community Group
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
CompuServe Business Executive health Contextual integration and
content links
------------------------------------------------------------------------------------------------------------------------
Travel Health basics Contextual integration and
content links
------------------------------------------------------------------------------------------------------------------------
Home & Interests Family health and other Contextual integration and
content links
------------------------------------------------------------------------------------------------------------------------
Lifestyles Women's Health and other Contextual integration and
content links
------------------------------------------------------------------------------------------------------------------------
Sports & Recreation Sports medicine Contextual integration and
content links
------------------------------------------------------------------------------------------------------------------------
Weather Seasonal health Contextual integration and
content links
------------------------------------------------------------------------------------------------------------------------
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
16
------------------------------------------------------------------------------------------------------------------------
Channel Area Type Impressions
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
Level Two: Contextual
Integration (con't)
------------------------------------------------------------------------------------------------------------------------
Netscape Lifestyles Womens, Mens and other Contextual link
------------------------------------------------------------------------------------------------------------------------
Families Teens, Senior Contextual link
------------------------------------------------------------------------------------------------------------------------
Sports Sports Medicine Contextual link
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Digital City Travel Health news, weather Contextual link
------------------------------------------------------------------------------------------------------------------------
Dining Guide Healthy eating Contextual link
------------------------------------------------------------------------------------------------------------------------
Sports Sports injuries Contextual link
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Level Three: Broad Reach * * *
------------------------------------------------------------------------------------------------------------------------
AOL Run of Service Banner rotation
------------------------------------------------------------------------------------------------------------------------
E-mail Banner rotation
------------------------------------------------------------------------------------------------------------------------
People Connection Banner rotation
------------------------------------------------------------------------------------------------------------------------
Member Directory Banner rotation
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
XXX.xxx Home Page Banner rotation
------------------------------------------------------------------------------------------------------------------------
Run of Hometown Banner rotation
------------------------------------------------------------------------------------------------------------------------
Run of Service Banner rotation
------------------------------------------------------------------------------------------------------------------------
Instant Messenger Banner rotation
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
CompuServe Run of Service Banner rotation
------------------------------------------------------------------------------------------------------------------------
XxxxxXxxxx.xxx Run of Banner rotation
Service
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Netcenter Netcenter Run of Service Banner rotation
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Digital City City Main Page Banner rotation
------------------------------------------------------------------------------------------------------------------------
Run of Service Banner rotation
------------------------------------------------------------------------------------------------------------------------
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
17
------------------------------------------------------------------------------------------------------------------------
Channel Area Type Impressions
------------------------------------------------------------------------------------------------------------------------
Other comparable As mutually agreed by the
promotions parties.
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
* * * * * * * * *
------------------------------------------------------------------------------------------------------------------------
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
18
Exhibit A-2: Programming Plan
AOL HEALTH CHANNEL
------------------
Partner provides: Daily columns, daily tips, expert advice, and personalization
----------------
tools for the AOL Health Channel.
Partner receives: Permanent branded presence and minimum of two lines of text
-----------------
links on the AOL Health main screen; permanent branded presence on Today in
Health and all applicable Conditions and Treatments screens; co-branding on new
"My Health"(or other name TBD) area to be developed jointly; co-branding on new
public health area to be developed jointly; contextually appropriate content
integration and promotion throughout the Health Channel as determined by AOL;
chats integrated in to AOL chat area (provided AOL technology is used).
Section 1 - General Content Requirements
1. List the Programming which Partner is Required to Provide
. AOL Health Main Screen:
. Daily tip/editorial branded from Xx. Xxxx (links directly to co-branded
affiliated site, same area each day). Should change daily Monday-Friday
at a minimum.
. Daily Health with Xxxxx Xxxxxxxxx (links directly to co-branded
affiliated site, same area each day) Should change daily Monday-Friday
at a minimum.
. Target audience: General appeal, as a way to bring new members into AOL
Health.
. ICP shall present AOL with other ideas for main screen promotion for
ICP in this space from time to time.
. Today in Health
. Today's Tip (feature on Today in Health which links to AOL Health's
Today's Tip screen, can have up to three drkoop links that from there
go directly to co-branded affiliated site)
. Exclusive news story in the "Top Stories" section -at least one daily
(link to full article will go directly to co-branded affiliated site)
. Programming features on "My" Health screen, to include at launch:
. Four health newsletters (weekly): Families, Women, Men, Seniors (AOL
to fulfill mailing)
. Alerts/Special Reports on news of broad interest to consumers
. "Staying Healthy with Xx. Xxxx" feature
. Drug Checker
. Two additional tools, which can either be co-developed or developed
separately by XxXxxx.xxx, which fit the programming approach of this
screen, e.g., Medication Tracker
. Health Risk Appraisal "Preventionnaire"
19
("My Health" screen will be hosted and programmed by AOL and will be a co-
branded screen featured as a new department on the AOL Health main screen.
Drkoop will provide content for up to * * * of the programming features on
such screen. Xxxxxx.xxx links from My Health area will go directly to co-
branded site.)
. After "My Health" launches:
. XxXxxx.xxx should build and add new Health Risk Appraisals (HRA) and
other ICP tools. AOL will select at its discretion from new tools
available such that up to * * * of core tools on "My Health" screen will
come from xxxxxx.xxx. AOL will have the ability to integrate in HRAs and
tools from other partners.
. XxXxxx.xxx and AOL shall work together to develop additional elements for
"My Health".
. Due to the rapidly changing environment, AOL staff and XxXxxx.xxx staff
should meet at least quarterly to review the programming elements of "My
Health" and then brainstorm, develop and implement new concepts.
. Target audience: Members interested in proactively managing their health.
Programming will be broad enough to reach those interested in wellness,
general health issues particular to that individual, disease prevention
and disease management.
. "Managing My `Condition'"
. Information, tools and other resources (e.g., newsletters) to help
members manage a specific condition.. It should complement, not duplicate
the content provided by Mayo Clinic. All programming on the screen should
relate to the specific condition to enable members to manage their
condition wisely.
. Target audiences: Members with a specific condition.
. Each "Managing My `Condition'" will be integrated within the Health
Channel's specific topic screen, as appropriate, e.g., "Managing My
Diabetes" will be featured along with other contextually appropriate
links on the Health Channel's Diabetes screen.
. Xxxxxx.xxx will provide and program an individual "Managing my Condition"
screen for the top 25 conditions at initial launch, with others to be
developed as mutually agreed upon, under a defined timeframe.
. Expert Features
. Xx. Xxxx and Xx. Xxxxxxxxx features, as well as any new medical experts
with whom Xxxxxx.xxx many form a relationship, will reside on Message
Boards, Chats and Experts and will be promoted on key AOL Health channel
screens from time to time as deemed appropriate by AOL.
. Xx. Xxxx Speaks About...
. Programming focusing on broad public health issues.. Program would center
around an opinion written by xxxxxx.xxx experts, including Xx. Xxxx
himself, but should also include links to various related information,
e.g., statistics, additional background on the topic.
. Target audience: Members who recognize Xx. Xxxx'x name and who are
interested in learning more about his opinion on various topics.
. This programming will be integrated within the relevant topic screens and
will be promoted on various channel screens, as appropriate.
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
20
. If Xx. Xxxx is unavailable for any reason to provide this feature, then
another nationally known expert may be substituted subject to AOL's
approval.
2. What programming is Partner required to provide on an exclusive basis?
The Xx. Xxxx Special Report/daily feature that will be a permanent feature
of the AOL Health Main Screen.
Will the Partner provide live events? Yes, frequency TBD as opportunities are
identified.
3. Required frequency of updates.
As dictated by the various elements, e.g., newsletters on a weekly
basis; Xx Xxxx and Xx. Xxxxxxxxx features on the AOL Health main screen
updated on a daily basis; alerts/special reports updated as needed.
4. What publishing format(s)?: HTML
Section 2 - Community Requirements
1. Will the Partner host message boards?
Yes (already existing), residing within their area. Partner agrees to
provide monitoring consistent with AOL's best practices.
2. Will the Partner host Chat?
Yes, will be integrated into the AOL Health Channel chat screens, and
will be promoted on a regular basis within the Message Boards, Chats,
and Experts area. Partner agrees to provide monitoring consistent with
AOL's best practices.
3. Will the Partner provide or promote Newsletters? Yes, at launch, four
(Families, Women, Men and Seniors' Health) will be featured on "My Health".
Based on the success of these newsletters, additional, topic-specific
newsletters may be added, e.g., depression, arthritis, which would be
featured on the appropriate topic screens subject to the agreement of both
parties.
4. What are the Member Registration requirements or restrictions? Subject to
terms of agreement.
5. Ownership of the community areas/content in the Partner's area?
The Partner will own all of the community areas provided within the
Partner's co-branded area.
6. What are the co-branding requirements in the community areas? Subject to
the co-branding terms of the agreement.
7. What are navigation requirements from the AOL Community/Message Board's?
Chats and experts will be integrated within the Health Channel's Message
Boards, Chats & Experts screen. Chats must be regularly scheduled and will
be integrated topically. Experts will be integrated by topic. Partner will
provide return navigation links to the relevant AOL community areas from
within the co-branded area .
8. Performance and Quality standards Partner must meet in community areas.
Subject to terms of agreement.
9. Must the Partner use AOL provided community tools? Yes, subject to terms of
agreement.
21
XXX.XXX
-------
XxXxxx.xxx will provide health-related content, tools and personalization for
the average consumer on a co-branded mirrored site with the domain
xxxxxx.xxx.xxx.
--------------
The content will consist of a news feed of original medical and health-related
stories written by XxXxxx.xxx reporters; sports-injury reports (as they become
available); advice from medical professionals; weekly general-interest health
features promoting articles covering a variety of topics; reference materials;
and consumer health care information that provides an introduction to the
industry and terms used.
Xxxxxx.xxx tools and personalization will be intimately linked to the core areas
of the XXX.xxx Health Webcenter. In addition xxxxxx.xxx will provide fun tools
as they become available, such as a tool showing the relationship between
calories eaten and the exercise needed to work it off, and a daily poll.
Section 1 - General Content Requirements
1. List the Programming which Partner is Required to Provide (News, Features,
Statistics, etc.):
XxXxxx.xxx will provide the following co-branded content:
. Weekly features for demographically targeted Health Web Center
departments
. Daily (Monday-Friday minimum) original health news on topics related to
health and health-care, including government policy
. A feed of XxXxxx.xxx health stories for the AOL My News product
. Expert advice columns from Xxxxx Xxxxxxxxx
. HTML code for widgets such as the Drug Checker, medication tracker and
immunization tracker (as they become available)
. Up-to-date sports injury reports (as they become available)
. Health tips, updated weekly, that provide a very brief teaser that links
to a full description.
. Consumer information on the health-insurance industry: articles,
calculators, lexicon and any other materials needed to provide users with
a general understanding of how health care plans work (as they become
available)
2. Will the Partner provide live events?
Not at first. When XXX.XXX supports Web auditorium events, live events
will be discussed.
3. Required frequency of updates.
Broad features should be updated at least weekly, while news-oriented
features (daily heath news, daily sports injury news) should be updated
at least on a daily basis. The poll should be updated as needed to retain
timeliness. Other content will be static.
The partner will provide up-to-date editorial calendars of content that
will appear in co-branded areas. The partner will also meet weekly via
conference call with XXX.XXX editorial staff to discuss upcoming content,
review previous editorial content, coordinate promotion of the Health Web
Center (such as providing graphics for use on the XXX.XXX home page), and
suggest other possible content for the Health Web Center and other
applicable XXX.XXX content areas.
4. What publishing format(s)?: HTML only.
22
Section 2 - Community Requirements
1. Will the Partner host message boards? NO
2. Will the Partner host Chat?
Partner's chat that will be integrated into XXX.xxx chat, provided that
AOL technology and tools are used. Partner agrees to provide monitoring
consistent with AOL's best practices. Partner will provide return na
vigation links to the relevant AOL community areas from within the co-
branded area.
23
Placement Branded Content
AOL Product Channel/Area Screen Type Y/N Frequency Linked To
-----------------------------------------------------------------------------------------------------------------------------------
1 XXX.xxx Health Index Feature Y Weekly Feature article
-----------------------------------------------------------------------------------------------------------------------------------
2 XXX.xxx Health Index Headlines N Daily Relevant news story
-----------------------------------------------------------------------------------------------------------------------------------
3 XXX.xxx Health Index Expert advice N Weekly Expert advice
-----------------------------------------------------------------------------------------------------------------------------------
4 XXX.xxx Health Index Poll N Weekly Results page
------------------------------------------------------------------------------------------------------------------------------------
5 XXX.xxx Health Index Widget Y Static Drug checker
------------------------------------------------------------------------------------------------------------------------------------
6 XXX.xxx Health Womens Health Feature Y Weekly Feature article
------------------------------------------------------------------------------------------------------------------------------------
7 XXX.xxx Health Womens Health Expert advice N Weekly Expert advice aggregate
area
------------------------------------------------------------------------------------------------------------------------------------
8 XXX.xxx Health Womens Health Widget Y Static Medication tracker (once
available)
------------------------------------------------------------------------------------------------------------------------------------
9 XXX.xxx Health Womens Health Widget Y Static Drug checker
------------------------------------------------------------------------------------------------------------------------------------
10 XXX.xxx Health Mens Health Feature Y Weekly Feature article
------------------------------------------------------------------------------------------------------------------------------------
11 XXX.xxx Health Mens Health Expert advice N Weekly Expert advice aggregate
area
------------------------------------------------------------------------------------------------------------------------------------
12 XXX.xxx Health Mens Health Widget Y Static Medication tracker
------------------------------------------------------------------------------------------------------------------------------------
13 XXX.xxx Health Mens Health Widget Y Static Drug checker
------------------------------------------------------------------------------------------------------------------------------------
AOL Product Channel/Area Screen Placement Type Branded Frequency Linked To
Y/N
------------------------------------------------------------------------------------------------------------------------------------
14 XXX.xxx Health Childrens Health Feature Y Weekly Feature article
------------------------------------------------------------------------------------------------------------------------------------
15 XXX.xxx Health Childrens Health Expert advice N Weekly Expert advice aggregate
area
------------------------------------------------------------------------------------------------------------------------------------
16 XXX.xxx Health Childrens Health Widget Y Static Medication tracker (once
available)
------------------------------------------------------------------------------------------------------------------------------------
17 XXX.xxx Health Childrens Health Widget Y Static Immunization Tracker (once
available)
------------------------------------------------------------------------------------------------------------------------------------
18 XXX.xxx Health Childrens Health Widget Y Static Drug checker
------------------------------------------------------------------------------------------------------------------------------------
19 XXX.xxx Health Seniors Health Feature Y Weekly Feature article
------------------------------------------------------------------------------------------------------------------------------------
20 XXX.xxx Health Seniors Health Expert advice N Weekly Expert advice aggregate
area
------------------------------------------------------------------------------------------------------------------------------------
21 XXX.xxx Health Seniors Health Widget Y Static Medication tracker (once
available)
------------------------------------------------------------------------------------------------------------------------------------
22 XXX.xxx Health Seniors Health Widget Y Static Drug checker
------------------------------------------------------------------------------------------------------------------------------------
23 XXX.xxx Health Fitness & Feature Y Daily Sports injury news
Sports Medicine
------------------------------------------------------------------------------------------------------------------------------------
24 XXX.xxx Health Alternative Widget Y Static Drug checker
Medicine
------------------------------------------------------------------------------------------------------------------------------------
25 XXX.xxx Health Diet & Nutrition Tip or Factoid N Weekly Full description of tip
------------------------------------------------------------------------------------------------------------------------------------
24
Placement Branded
AOL Product Channel/Area Screen Type Y/N Frequency Linked to
------------------------------------------------------------------------------------------------------------------------------------
26 XXX.xxx Health Doctors, XXX XXX TBD Health insurance consumer
Insurance, HMOs info resources
and More
------------------------------------------------------------------------------------------------------------------------------------
27 XXX.xxx Health Health & Beauty Tip or Factoid N Weekly Full description of tip
------------------------------------------------------------------------------------------------------------------------------------
28 XXX.xxx Sports Index Link Y Daily Sports injury news (once
available)
-----------------------------------------------------------------------------------------------------------------------------------
29 XXX.xxx Sports Fantasy Sports Link Y Daily Sports injury news (once
available)
-----------------------------------------------------------------------------------------------------------------------------------
30 XXX.xxx My News N/a Headlines Y Daily Health-related news
stories
-----------------------------------------------------------------------------------------------------------------------------------
25
COMPUSERVE
----------
Section 1 - General Content Requirements
. xxxxxx.xxx will be the Anchor Tenant for CompuServe Health & Fitness Channel,
which includes prominent Channel wide branding (e.g.: CompuServe Health &
Fitness with xxxxxx.xxx).
. CompuServe will link to xxxxxx.xxx tools, databases, articles, and features,
co-branded for CompuServe Health, throughout the Health Channel, as shown below
or as mutually agreed upon.
. drkoop will be a special featured partner in the Fitness and Nutrition
Departments as shown
. xxxxxx.xxx will supply the top feature article for the Health Channel, plus
additional articles for designated Departments, and for the Family, Over 50, and
Women's Channels.
. Partner will provide weekly teaser text for additional content links to co-
branded site: Nutrition Department: The Daily Special; Ask the Expert; Fitness
Dept: Ask the Expert; 4 Get Fit
. Content will be provided in HTML coded format, preferably by automatic feed.
Should automatic feed be impractical, Partner will update content using
CompuServe's Content Submission Manager tool (CSM)
. xxxxxx.xxx to provide fully co-branded site. xxxxxx.xxx will link to
CompuServe Forums from Co-branded pages and will not link to xxxxxx.xxx
Communities from these pages.
. As other tools and utilities are added to the drkoop co-branded area,
placements will be added on the CompuServe Health & Fitness Channel
Section 2 - Community Requirements
. To the extent technically feasible, xxxxxx.xxx community chats will be
integrated with the CompuServe Forum chat applet to allow participation by
CompuServe members in already scheduled chats.
. Should this prove to be impossible, drkoop and AOL will mutually identify
opportunities for live chat events per month within CompuServe Forums.
Section 2 (Continued) - Other Requirements
. GO DRKOOP will take CompuServe members to the Co-Branded site top page.
. CompuServe will add xxxxxx.xxx to its CompuServe Search and Internet "try
this first".
. Xxxxxx.xxx will be the anchor tenant for CompuServe's Health & Fitness
Channel with prominent branding throughout the Channel in the top Channel
banner.
. Additional branding will be included on special features throughout the
Channel, as mutually agreed.
. The co-branded site will include the CompuServe Health & Fitness Channel
banner and top bar site navigation across the top; navigation links across the
bottom, and a portion of the left navigation reserved for links to Forums.
Most links to the Co-branded site will be one or two clicks from the top of the
Channel, except for articles supplied to each Department which are three clicks
(see attached chart). Note on programming plan: subject to change based on new
content available from xxxxxx.xxx in each of the identified subject areas.
26
Page/Department Item Source/ Brand Notes
Destination
Health Channel Top Channel Banner N/a Logo integrated xxxxxx.xxx Anchor Tenancy: Channel to be
with Channel billed as "Compuserve Health & Fitness, with
banner throughout xxxxxx.xxx" or other equivalent language to
Channel be agreed upon.
------------------------------------------------------------------------------------------------------------------------------------
Health Channel Top Top Feature Story; teaser Provided by xxxxxx.xxx Top story, above the scroll
and link to second page. xxxxxx.xxx branded story
------------------------------------------------------------------------------------------------------------------------------------
Health Channel Top Links to Databases xxxxxx.xxx Csv. None Search boxes for Drugs; Encyclopedia; Web
CoBrand pages Site Reviews
------------------------------------------------------------------------------------------------------------------------------------
Health Channel Top Dr. Xxxxx Provided by Daily Health with Title links to Ailments Dept.
xxxxxx.xxx Dr. Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
Health Channel Top Xx. Xxxx'x Corner Department page Name can change See below for destination content
------------------------------------------------------------------------------------------------------------------------------------
Xx. Xxxx'x Corner Monthly topical feature Provided by Branded Feature links to co-branded site throughout.
(seasonal; health month) xxxxxx.xxx Right navigation will have Compuserve related
links.
------------------------------------------------------------------------------------------------------------------------------------
Ask the Experts Descriptions of Experts drkoop experts Branded Links to cobranded for biographies, archives
and links for more as well as any and to ask a question
CompuServe Forum
experts
------------------------------------------------------------------------------------------------------------------------------------
Fitness Fitness files teaser and Provided by If desired Top story, above the scroll,
link to second page xxxxxx.xxx pertaining to fitness.
------------------------------------------------------------------------------------------------------------------------------------
Fitness Ask the Expert Questions Provided by If desired Links to full Q&A on cobranded site;
of the week xxxxxx.xxx links to ask your questions and FAQ
on co-branded site.
------------------------------------------------------------------------------------------------------------------------------------
Fitness Fitness Facts link (right xxxxxx.xxx Csv. Links to co-branded page
Nav) CoBrand pages
------------------------------------------------------------------------------------------------------------------------------------
Fitness Links to drkoop Fitness xxxxxx.xxx Csv. Branded Links to Fitness Files, Four Get
Center sections CoBrand pages Fit; Ask the Expert; Weekly Fitness;
Fitness Facts
------------------------------------------------------------------------------------------------------------------------------------
Fitness Four Get Fit xxxxxx.xxx Csv. If desired Links to co-branded pages
CoBrand pages
------------------------------------------------------------------------------------------------------------------------------------
Fitness & Nutrition Links to drkoop centers xxxxxx.xxx Csv. Branded Right Nav: Links to Fitness Center;
Departments CoBrand pages Nutrition Center; Tackling Tobacco;
Preventionaire; Prevention Center
------------------------------------------------------------------------------------------------------------------------------------
Nutrition Nutrition for Healthy Provided by Branded Links to full article on second page.
Living feature xxxxxx.xxx Links from that article to co-branded site.
------------------------------------------------------------------------------------------------------------------------------------
27
Page/Department Item Source/Destination Brand Notes
------------------------------------------------------------------------------------------------------------------------------------
Nutrition Daily special Provided by Branded Teaser links to recipe on co-branded
xxxxxx.xxx site.
------------------------------------------------------------------------------------------------------------------------------------
Nutrition Ask the Expert Provided by Branded Links to full Q&A on cobranded site;
xxxxxx.xxx links to ask your questions and FAQ
on co-branded site.
------------------------------------------------------------------------------------------------------------------------------------
Nutrition Links to drkoop centers xxxxxx.xxx Csv. Branded Links to Nutrition for your
CoBrand pages condition; Vitamins and Minerals;
Healthy Recipes; Nutrition for
Healthy Living (right and left nav)
on co-branded site
------------------------------------------------------------------------------------------------------------------------------------
Ailments & Conditions Top Feature Dr. Xxxxx Q&A Provided by xxxxxx.xxx branded Content relating to ailments and
xxxxxx.xxx conditions. Links to full story on
CompuServe site. Links to archives
and ask a question go to co-branded
site.
------------------------------------------------------------------------------------------------------------------------------------
Ailments & Conditions Links to Databases xxxxxx.xxx Csv. Links to Drug DB, Medical
page and each CoBrand pages Encyclopedia, and other tools as
Specialty Center available.
------------------------------------------------------------------------------------------------------------------------------------
Ailments & Conditions Links to Specialty Centers CompuServe pages Specialty Centers for each condition
------------------------------------------------------------------------------------------------------------------------------------
Diabetes; Heart; Pain; Top Feature Story; teaser Provided by xxxxxx.xxx Top story, above the scroll,
and Cancer Specialty and link to second page xxxxxx.xxx branded story pertaining to subject area
Centers
------------------------------------------------------------------------------------------------------------------------------------
Research Links to relevant xxxxxx.xxx Csv. xxxxxx.xxx Branded ICP is contractually permitted to
Databases and tools CoBrand pages such databases and tools
------------------------------------------------------------------------------------------------------------------------------------
Women's Health Top Feature Story; teaser Provided by Top story, above the scroll,
and link to second page xxxxxx.xxx pertaining to Women's Health.
------------------------------------------------------------------------------------------------------------------------------------
Women's Health Dr. Xxxxx Question Provided by Links to co-branded pages
xxxxxx.xxx
------------------------------------------------------------------------------------------------------------------------------------
Men's Health Top Feature Story; teaser Provided by Top story, above the scroll,
and link to second page xxxxxx.xxx pertaining to Men's Health.
------------------------------------------------------------------------------------------------------------------------------------
Womens, Mens and Mental drkoop centers xxxxxx.xxx Csv. Branded Links to Various Centers on co-
Health CoBrand pages branded site(may change as
appropriate for subject area):
Managing Stress; Fitness; Nutrition;
Tobacco; Prevention; Safety; etc.)
------------------------------------------------------------------------------------------------------------------------------------
Children's Health Top Feature Story; teaser Provided by Top story, above the scroll,
and link to second page xxxxxx.xxx pertaining to pediatric Health.
------------------------------------------------------------------------------------------------------------------------------------
Mental Health Top Feature Story; teaser Provided by Top story, above the scroll,
and link to second page xxxxxx.xxx pertaining to Mental Health
------------------------------------------------------------------------------------------------------------------------------------
28
------------------------------------------------------------------------------------------------------------------------------------
The Family Channel Feature Story; teaser & Provided by Branded Story Top story, above the scroll,
link to second page xxxxxx.xxx pertaining to Pediatric Health.
Different from that in Children's
Health
------------------------------------------------------------------------------------------------------------------------------------
The Family Channel Link to xxxxxx.xxx xxxxxx.xxx Csv. Links to the xxxxxx.xxx/Xxxxxx
Co-branded Site CoBrand pages Channel Co-branded pages Top. Adds
additional incremental traffic.
------------------------------------------------------------------------------------------------------------------------------------
The Women's Channel: Feature Story; teaser & Provided by Branded Story Top story, above the scroll,
Health & Beauty link to second page xxxxxx.xxx pertaining to Women's Health.
Different article than that in Health
Channel Women's Health
------------------------------------------------------------------------------------------------------------------------------------
The Women's Link to xxxxxx.xxx xxxxxx.xxx Csv. Links to the xxxxxx.xxx/Xxxxxx
Channel: Health & Co-branded Site CoBrand pages Channel Co-branded pages Top. Adds
Beauty additional incremental traffic.
------------------------------------------------------------------------------------------------------------------------------------
Over 50 Feature Story; teaser & Provided by Branded Story Top story, above the scroll,
link to second page xxxxxx.xxx pertaining to Aging.
------------------------------------------------------------------------------------------------------------------------------------
Over 50 Link to xxxxxx.xxx xxxxxx.xxx Csv. Links to the xxxxxx.xxx/Xxxxxx
Co-branded Site CoBrand pages Channel Co-branded pages Top. Adds
additional incremental traffic.
------------------------------------------------------------------------------------------------------------------------------------
Research Channel Links xxxxxx.xxx Csv. Branded Links to co-branded site for medical
CoBrand research
------------------------------------------------------------------------------------------------------------------------------------
29
NETSCAPE NETCENTER
------------------
Xxxxxx.xxx will be the premier provider of branded, general health & wellness
information and utilities.
Xxxxxx.xxx will provide comprehensive, trusted consumer healthcare information
and services to empower users to better manage their personal health. The focus
of xxxxxx.xxx's content will be based heavily around consumer trends in health.
Xxxxxx.xxx brands and quality content will help to build a trusted relationship
with users which will be the foundation for the later phases of empowering the
consumer in disease & wellness management.
Phase 1: Provide comprehensive, consumer-focused healthcare information &
utilities:
. generalized health & wellness info (most frequently requested health info)
. deeper disease-specific, medical diagnostic, & medical reference info
. interactive, time-saving tools to help the consumer manage their health
online
Phase 2: Deeper integration of ICP Tools as mutually agreed.
Section 1 - General Content Requirements
1. List the Programming which Partner is Required to Provide:
. News & Features - note: Daily = Mon.-Fri. at a minimum
. Health News (updated: daily)
. Health Breakthroughs / Health Tech (updated: daily) - as available
. Daily Health with Xx. Xxxxx Xxxxxxxx (updated: daily)
. Announcements & Recalls (updated: as appropriate)
. Health Tip (updated: daily)
. Tools & Utilities
. Polls (updated: same frequency as on xxxxxx.xxx.xxx)
. Drug Checker (updated: N/A)
. Conditions & Concerns (updated: N/A)
. Additional Tools (in development) TBD - commitment that new tools will
be made available in same timeframe.
. News, Features, Tools & Utilities will be threaded throughout the Health
Index page and appropriate Health Department pages:
. Diseases & Conditions
. Diet & Nutrition
. Exercise & Fitness
. Health & Beauty
. Alternative Health
. Emotional Health
. Sexual health
. Doctors, Insurance, HMOs
. Women's Health
. Men's Health
. Children's Health
30
. Senior's Health
. Disease Centers
. Cancer Center
. HIV/AIDS
. Diabetes
. Anorexia/Bulemia
. Health Breakthroughs area: New area to be created and hosted by
xxxxxx.xxx that is threaded throughout the relevant Netcenter Health
Departments. Content of Health Breakthroughs area will include new
medical products and how they are beneficial or harmful; product recalls;
feature news items, `watchdogs' and special reports.
. MyHealth: My Health will be a customizable Health index page, leveraging
Netscape's personalization technology, at AOL's option. This page will be
hosted by Netscape, but will have direct links to xxxxxx.xxx's co-branded
affiliated site. Appropriate tools from xxxxxx.xxx will be integrated
into the product offering as mutually agreed.
. MyNetscape - Partner will provide as a "widget" their most popular
tool/utility/feature(s) to be included on the MyNetscape page, at AOL's
option.
2. Will the Partner provide live events?
Partner will provide live events focused on featured speakers / specific
topics with the same frequency as offered on xxxxxx.xxx.
3. Required frequency of updates. See above.
4. What publishing format(s): HTML & XML feeds (for any daily changing
content).
Section 2 - Community Requirements
1. Will the Partner host message boards? TBD.
2. Will the Partner host Chat?
Yes, xxxxxx.xxx's chat will be integrated in to Netcenter Health chats,
provided the AOL technology is used.
3. Will the Partner provide or promote Newsletters? Yes, as appropriate.
4. Links: Contextual content links within the message board headers and
footers shall refer to AOL-native products where it is feasible.
31
DIGITAL CITY:
-------------
Xx. Xxxx will be the Premier Health Partner for DCI. This means that Xx. Xxxx
will have a top-level banner sponsorship, permanent placement of badges and
branded content integration. We will feature other providers' content in a
complementary way so that we offer a well-rounded product to our users.
Xxxxxx.xxx chats will be integrated into DCI Support Online, provided that AOL
technology is used. Daily shall mean Monday through Friday, at a minimum.
Overview of placements on DCI-hosted pages
Center Page Item Source/ Brand Frequency Notes
Destination
------------------------------------------------------------------------------------------------------------------------------------
Health City Main Top Level Sponsor Banner Xxxxxx.xxx Logo/ Daily This is the center bar above the
banner health navigation and dail story
promotion.
------------------------------------------------------------------------------------------------------------------------------------
Health Support Online Sponsorship of the main page Xxxxxx.xxx Logo/ Daily This is an area dedicated to
(Community Page) badge member interactionn for people to
discuss specific health-related
issues. Xxxxxx.xxx could sponsor
this area.
------------------------------------------------------------------------------------------------------------------------------------
Health City Main Health articles Xxxxxx.xxx Logo Daily 2-3 topical articles that point to
an interim page that contains the
main article and summaries that
point to the Xxxxxx.xxx site.
------------------------------------------------------------------------------------------------------------------------------------
Health Health Sponsorship of condition main Xxxxxx.xxx Text/ Monthly We give the consumer the
Condition main page badge opportunity to get basic
information and current news
related to that condition.
------------------------------------------------------------------------------------------------------------------------------------
Health Health Category Category Main page Xxxxxx.xxx Logo As Integrate co-branded text
needed articles into the category box.
after This textbox resides on the main
first city pages and all of the
phase secondary pages.
------------------------------------------------------------------------------------------------------------------------------------
Health Local Health Interactive content, Information Xxxxxx.xxx Badge monthly Local content integration (non-
Resources Databases exclusive)
------------------------------------------------------------------------------------------------------------------------------------
DCI 1-of-24 Ticker City Sponsorship of a top 10 list Xxxxxx.xxx Logo Daily We plan to have an informational
Main Page ticker that will reside on the
front page of each city. 24
locally-relevant topics will
rotate through the ticker.
------------------------------------------------------------------------------------------------------------------------------------
32
A-3: Customization and Co-branding Requirements
-----------------------------------------------
ICP Internet Sites. ICP shall create, at its sole expense, a fully customized
------------------
site for each of the AOL Properties and warrants that it also shall implement,
at its sole expense, any appropriate infrastructure additions to the ICP
Internet Site to support the projected traffic growth on such ICP Internet
Sites. Such customization shall include, without limitation:
(a) Standard Customization
--- ----------------------
(i) the inclusion of a toolbar (the parameters, specifications and format
of which are listed below) at the top and bottom of each page of the
ICP Internet Site, which, among other things, will provide navigation
back to the AOL Network;
(ii) various additional co-branding elements as specified below;
(iii) the creation of links in connection with communication services on
the ICP Internet Sites to the corresponding or equivalent
communication services or areas of the ICP Internet Site of the
appropriate AOL Property (e.g., chat from the ICP Internet Site of
the AOL Service will link to the chat area on the AOL Service); and
(iv) the linking of each ICP Internet Site to an URL which contains the
location code for the appropriate AOL brand (e.g.,
xxx.xxxxxx.xxx.xxx) or any such other URL as determined by AOL in its
sole discretion).
(b) AOL Service. Please see attached co branding mockup.
----------------
33
AOL Brands Cobranding
Usage Guidelines [AOL Confidential]
10 June 99
AOL interim hat
585w 30h
position at (0,0)
logo art, main & help buttons provided to
size
X = height of capital A AOL Presents
9.1 aol cobrand eyebrow
1. typographic art
provided to size--extend
baseline rule to full
width of partner brand;
2. positioning
set eyebrow at minimum
2 pixels above partner
brand, left- aligned with
the brand;
3. clear space
provide clear space
(see x) above the
eyebrow equal to the
height of the letter A.
4. type specs
AOL brand set in Thesis
Sans Extra Bold Plain
all caps. Presents set
in Thesis Sans Semi Bold
Plain. Type should be no
smaller than 14 pt.
aol interim footer
585w 30h
position at (0,0)
logo art, main & help buttons provided to size
34
(c) XXX.xxx
-------
ICP shall create a version of the ICP Internet Site customized for distribution
through XXX.xxx (the "XXX-XXX.xxx Site") by (w) developing the XXX-XXX.xxx Site
as a "cul de sac" site containing no links outside of the XXX-XXX.xxx Site other
than to XXX.xxx, other AOL or third party Content determined by AOL, or
advertisements permitted under this Agreement, (x) displaying on each page of
the XXX-XXX.xxx Site headers and footers of size and type determined by AOL and
which contain both XXX.xxx and ICP branding, links to XXX.xxx, a Netfind search
box and two (2) promotional spaces to be programmed by AOL, (y) programming each
page of the XXX-XXX.xxx Site with a co-branded domain name (e.g.,
xxxxxx.xxx.xxx) and (z) matching the look and feel of XXX.xxx on the XXX-XXX.xxx
Site. ICP will, in accordance with the Programming Plan, and subject to the
terms of this Agreement, (1) provide AOL with Content for the areas and screens
of XXX.xxx described in the Programming Plan, and (2) program and manage the
Content on the XXX-XXX.xxx Site for distribution through XXX.xxx. All terms and
conditions of this Agreement applicable to the ICP Internet Site shall apply to
the XXX-XXX.xxx Site except as expressly otherwise stated.
(d) CompuServe Service and XxxxxXxxxx.xxx
ICP/CompuServe co-branded as follows: (a) the ICP-CompuServe Site will be
framed on each page across the top and along the left side using the then-
current navigation of the CompuServe Health Channel and the left side navigation
will comprise the Health Channel navigation bar; (b) ICP shall eliminate the use
of "pop-up" windows, screens and similar types of functionality in connection
with the display of advertising, promotions or sponsorships on the ICP-
CompuServe Site; (c) ICP shall program each page of the ICP-CompuServe Site with
a co-branded domain name (e.g., xxxxxx.xxxxxxxxxx.xxx) and (e) ICP shall match
the look and feel of CompuServe Service Health Channel on the ICP-CompuServe
Site.
(e) Digital City. ICP/Digital City co-branded as follows: (x) displaying on
------------
each page of the ICP-Digital City Site headers and footers of size and type
determined by AOL and which contain both Digital City and ICP branding, and
links to Digital City; (y) programming each page of the ICP-Netcenter Site with
a co-branded domain name (e.g., xxxxxx.xxxxxxxxxxx.xxx) and (z) matching the
look and feel of Digital City on the ICP-Digital City Site.
(f) Netscape Netcenter. ICP/Netscape Netcenter co-branded as follows: (x)
------------------
displaying on each page of the ICP-Netcenter Site headers, footers and
navigation sidebar of size and type determined by AOL and which contain both
Netscape and ICP branding, links to Netscape Netcenter, a search box ,two (2)
promotional spaces to be programmed by AOL, and advertising space as desired by
partner ; (y) programming each page of the ICP-Netcenter Site with a co-branded
domain name (e.g., xxxxxx.xxxxxxxx.xxx) and (z) matching the look and feel of
Netscape Netcenter on the ICP-Netcenter Site. Within navigation sidebar, where
subdepartments exist under Netcenter Department headings, these will be broken
out for navigational purposes.
35
EXHIBIT B -- DEFINITIONS
-------------------------
DEFINITIONS. The following definitions shall apply to this Agreement:
-----------
Advertising Revenues. Aggregate amounts collected plus the fair market value of
--------------------
any other compensation received (such as barter advertising) by ICP or ICP's
agents, as the case may be, arising from the license or sale of AOL
Advertisements, less applicable Advertising Sales Commissions.
Advertising Sales Commission. In the case of an AOL Advertisement, actual
----------------------------
amounts paid as commission to third party agencies in connection with sale of
the AOL Advertisement.
Affiliate. Any agent, distributor or franchisee of AOL, or an entity in which
---------
AOL holds at least a * * * equity interest.
* * * Certain information on this page has been omitted and filed separately
------------------------------------------------------------------------------
with the Securities and Exchange Commission. Confidential treatment has been
-----------------------------------------------------------------------------
requested with respect to the omitted portions.
-----------------------------------------------
XXX.xxx. AOL's primary Internet-based Interactive Site marketed under the
-------
"XXX.XXX(TM)" brand, specifically excluding (a) the AOL Service, (b) any
international versions of such site, (c) XxxxxXxxxx.xxx, Netscape Netcenter, any
other CompuServe or Netscape products or services or interactive sites, (d)
"ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(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 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 brand service which was operated,
maintained or controlled by the former AOL Studios division, (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 is materially different from AOL's primary
Internet-based Interactive Site marketed under the "XXX.XXX(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.
AOL Look and Feel. The distinctive and particular elements of graphics, design,
-----------------
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) within the
AOL Network and the total appearance and impression substantially formed by the
combination, coordination and interaction of these elements.
AOL Member(s). Authorized users (including any sub-accounts under an authorized
-------------
master account) of the AOL Network.
AOL Network. (i) The AOL Service, (ii) XXX.xxx, (iii) CompuServe Service, (iv)
------------
XxxxxXxxxx.xxx, (v) Digital City, (vi) Netscape Netcenter and (vii) any other
product or service owned, operated, distributed or authorized to be distributed
by or through AOL or its Affiliates worldwide through which such party elects to
offer the ICP Internet Site, ICP Programming and/or Licensed Content (which may
include, without limitation, AOL-related Internet sites, "offline" information
browsing products, international versions of the AOL brand service, MovieFone,
or ICQ).
AOL Property. Any product, service or property owned, operated, marketed,
------------
distributed, or authorized to be distributed by or through AOL or its
Affiliates, including, without limitation, the AOL Service, XXX.xxx, and
CompuServe Service, XxxxxXxxxx.xxx, Digital City and Netscape Netcenter.
AOL Purchaser. (i) Any person or entity who enters the ICP Internet Site or the
-------------
ICP Programming from the AOL Network including, without limitation, from any
third party area therein (to the extent entry from such third party area is
traceable through both Parties' commercially reasonable efforts), and generates
Transaction Revenues (regardless of whether such person or entity provides an e-
mail address during registration or entrance to the ICP Internet Site which
includes a domain other than an "XXX.xxx" domain); and (ii) any other person or
entity who, when purchasing a product, good or service through an ICP
Interactive Site, provides an XXX.xxx domain name as part of such person or
entity's e-mail address and provided that any person or entity who has
previously satisfied the definition of AOL Purchaser will remain an AOL
Purchaser, and any subsequent purchases by such person or entity (e.g., as a
result of e-mail solicitations or any off-line means for receiving orders
requiring purchasers to reference a specific promotional identifier or tracking
code) will also give rise to Transaction Revenues hereunder (and will not be
conditioned on the person or entity's satisfaction of clauses (i) or (ii)
above).]
AOL Service. The narrow-band U.S. version of the America Online brand service,
-----------
specifically excluding (a) XXX.xxx and any other AOL Interactive Site, (b) the
international versions of an America Online service (e.g., AOL Japan), (c) the
CompuServe(R) brand service and any other CompuServe products or services, (d)
Netscape Netcenter(TM) and any other Netscape products or services, (e)
"ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital City(TM),"
"NetMail(TM)," "Real Fans", "Love@AOL", "Entertainment Asylum," "AOL Hometown"
or any similar independent product, service or property which may be offered by,
through or with the U.S. version of the America Online brand service, (f) any
programming or content area offered by or through the U.S. version of the
America Online brand service over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas), (g) 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 brand service, (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 service which is materially different from the narrow-band U.S. version
of the America Online brand service, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any co-
branded version of the service and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer.
Change of Control. (a) The consummation of a reorganization, merger or
-----------------
consolidation or sale or other disposition of substantially all of the assets of
a party * * * or (b) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
CompuServe Service. The standard HTML version of the narrow-band U.S. version of
-------------------
the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe), (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 complete or substantially complete operational control (e.g., third-
party Content areas), (e) any yellow pages, white pages, classifieds or other
search, directory or review services or Content (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 or functionality materially different from the
Content, distribution, services or functionality associated with the standard,
narrow-band U.S. version of the CompuServe brand service, including, without
limitation, any version of such service distributed through any platform or
device other than a desktop personal computer, (h) any property, feature,
product or service which CompuServe or its affiliates may acquire subsequent to
the Effective Date, (i) the America Online brand service and any independent
product or service which may be offered by, through or with the U.S. version of
the America Online brand service and (j) the HMI versions of the CompuServe
brand service.
XxxxxXxxxx.xxx. CompuServe's primary Internet-based Interactive Site marketed
--------------
under the "XxxxxXxxxx.xxx(TM)" brand, specifically excluding (a) the CompuServe
Service and AOL Service, (b) any international versions of such site, (c)
XXX.xxx, Netscape Netcenter, any other AOL or Netscape products or services or
interactive sites, (d) "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant
Messenger(TM)," "NetMail(TM)" or any similar independent product or service
offered by or through such site or any other AOL or CompuServe Interactive Site,
(e) any programming or Content area offered by or through such site over which
AOL does not exercise 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.
versions of the America Online brand service or CompuServe brand service which
was operated, maintained or controlled by the former AOL Studios division, (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 or
CompuServe Interactive Site, (h) any property, feature, product or
---------------
*** Certain informaion on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
36
service which AOL or its affiliates may acquire subsequent to the Effective Date
and (i) any other version of an AOL or CompuServe Interactive Site which is
materially different from CompuServe's primary Internet-based Interactive Site
marketed under the "XxxxxXxxxx.xxx(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.
Confidential Information. Any information relating to or disclosed in the
------------------------
course of this 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,
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" shall not include information
(a) already lawfully known to or independently developed by the receiving Party,
(b) disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
Content. Text, images, video, audio (including, without limitation, music used
-------
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, pointers, technology and software.
Development and Services Agreement. "Development and Services Agreement" shall
----------------------------------
mean that certain Development and Services Agreement entered into between the
Parties of even date herewith.
Digital City. The standard, narrow-band U.S. version of Digital City's local
-------------
content offerings marketed under the Digital City brand name, specifically
excluding (a) the AOL Service, XXX.xxx or any other AOL Interactive Site, (b)
any international versions of such local content offerings, (c) the
CompuServe(R) brand service and any other CompuServe products or services (d)
"Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital
City," "NetMail(TM)," "Electra", "Thrive", "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 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 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
narrow-band U.S. version of Digital City's local content offerings marketed
under the Digital City brand name, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any co-
branded version of the offerings and any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer, and (i) Digital City- branded offerings in any local
area where such offerings are not owned or operationally controlled by AOL, Inc.
or DCI (e.g., Chicago, Orlando, South Florida, and Hampton Roads).
Xx. Xxxx Site. The Internet site and Content, currently located at
-------------
URL:xxxx://xxxxxx.xxx and all related URLs (including without limitation any
third party affiliated versions of such site (e.g., customized, mirrored,
private labeled sites (e.g., versions for private hospitals, broadcast
affiliates)), which are managed, maintained or owned by ICP or its agents or to
which ICP licenses information, content or other materials.
ICP Competitors. * * *ICP and AOL may mutually agree to revise this list on an
---------------
as mutually agreed upon basis; provided that, any revisions to such list shall
not affect placements, arrangements or relationships entered into or committed
to prior to the revision of such list.
ICP Interactive Site. Any interactive site or area (other than ICP Programming),
--------------------
including without limitation the Xx. Xxxx Site and any customized, mirrored or
private-labeled site or area (e.g., versions for local hospitals and broadcast
affiliates), which is managed, maintained or owned by ICP or its agents or to
which ICP provides and/or licenses information, content or other materials,
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 proposed Active Desktop or interactive
television service such as WebTV.
ICP Internet Site. Each of the versions of the Xx. Xxxx Site customized for
-----------------
distribution through the AOL Network in accordance with this Agreement.
ICP Presence. Any (a) ICP trademark or logo, (b) headline or picture from ICP
------------
Content, (c) teaser, icon, or link to the ICP Internet Site or ICP Programming
and/or (d) other Content which originates from, describes or promotes ICP or
ICP's Content.
ICP Programming. Any (a) area within the AOL Network or outside the AOL Network
---------------
but exclusively available to AOL Members, which area is developed, programmed,
and/or managed by ICP, in whole or in part, pursuant to this Agreement and all
Content thereon (including, without limitation, message boards, chat and other
AOL Member-supplied content areas contained therein) including, without
limitation, any co-branded site or page, and community centers, (b) Content
provided to AOL by ICP pursuant to this Agreement for distribution on or through
the AOL Network other than on the ICP Internet Site, and (c) ICP Tools.
ICP Tool. An interactive utility owned, operated, marketed, distributed, or
--------
authorized to be distributed by or through ICP or its agents that displays
results based on data entered by an end-user.
Impression. User exposure to an ICP Presence, as such exposure may be
----------
reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols.
Interactive Service. * * *
-------------------
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.
Keyword Search Terms. The Keyword online search terms made available on the AOL
--------------------
Service for use by AOL Members, combining AOL's Keyword online search modifier
with a term or phrase specifically related to ICP (and determined in accordance
with the terms of this Agreement).
Link. The mechanism by which a user at one Interactive Site can automatically
-----
move to another Interactive Site, or any screen within such Interactive Site.
Linked Interactive Site. Any site or area outside of the AOL Network which is
-----------------------
linked to ICP Programming (through a "pointer" or similar link) subject to
approval by AOL in accordance with the terms and conditions of this Agreement.
Linked ICP Interactive Site. Any ICP Interactive Site which is also a Linked
---------------------------
Interactive Site.
Licensed Content. All Content provided by ICP or its agents through the ICP
----------------
Internet Site and/or the AOL Network in connection with the subject matter of
this Agreement, including without limitation all ICP Programming.
Named Entity. * * * AOL may from time to time amend this definition by adding
------------
reasonably comparable parties and providing ICP with sixty (60) days prior
written notice thereof.
Net Revenues. The sum of Advertising Revenues and Transaction Revenues.
------------
Netscape Netcenter. AOL's primary Internet-based Interactive Site marketed
------------------
under the "Netscape Netcenter(TM)" brand and located at xxx.xxxxxxxx.xxx or such
----------------
other URL as AOL may designate specifically excluding (a) the AOL Service and
XXX.xxx (b) any international versions of such site, (c) XxxxxXxxxx.xxx, any
other CompuServe products or services or interactive sites, "ICQ," "AOL
NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)" or any similar
independent product or service offered by or through the Netcenter site or any
other AOL Interactive Site, (d) any programming or Content area offered by or
through such site over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (e) any programming or Content area offered by or
through the U.S. version of the America Online brand service which was operated,
maintained or controlled by the former AOL Studios division, (f) 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, (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 Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the Netscape Netcenter brand, by
virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded versions and any version
distributed through any
---------------
*** Certain informaion on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
37
broadband distribution platform or through any platform or device other than a
desktop personal computer.
Page View. A user exposure to any page or screen on the ICP Internet Site and
---------
the ICP Interactive Site.
PMR Activation. The registration of an account by a user with the Personal
--------------
Medical Record service (i.e., any affirmative action by a user to set up a
Personal Medical Record account) and at least * * * to the service by such user.
Product. Any product, good or service which ICP (or others acting on its behalf
-------
or as distributors) offers, sells, provides, distributes or licenses to AOL
Members directly or indirectly through (i) the ICP Internet Site (including
through any Interactive Site linked thereto) or ICP Programming (including any
Linked Interactive Site), (ii) any other electronic means directed at AOL
Members (e.g., e-mail offers), or (iii) an "offline" means (e.g., toll-free
number) for receiving orders related to specific offers within the ICP Internet
Site or ICP Programming requiring purchasers to reference a specific promotional
identifier or tracking code, including, without limitation, products sold
through surcharged downloads (to the extent expressly permitted hereunder).
Restricted Screens. All screens within the health and/or medical area (and
------------------
specifically excluding any screen containing broad-band-oriented Content,
features or functionality within any such AOL Property) on each of the following
AOL Properties: (a) the AOL Service; (b) XXX.xxx; (c) Netscape Netcenter; (d)
CompuServe Service; (e) XxxxxXxxxx.xxx; and (e) Digital City.
Term. The period beginning on the Effective Date and ending upon the expiration
----
or earlier termination of this Agreement.
Transaction Revenues. Aggregate amounts paid by AOL Purchasers in connection
--------------------
with the sale, licensing, distribution or provision of any Products, including,
in each case, handling, shipping, service charges, and excluding, in each case,
(a) amounts collected for sales or use taxes or duties and (b) credits and
chargebacks for returned or canceled goods or services, but not excluding cost
of goods sold or any similar cost.
---------------
*** Certain informaion on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
38
EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
------------------------------------------------
I. AOL NETWORK
Content. ICP represents, warrants and covenants that all Content contained
-------
within the ICP Internet Site and ICP Programming and all Licensed Content (i)
does and will conform to AOL's applicable Terms of Service, the terms of this
Agreement and any other standard, written policy of AOL and any applicable AOL
Property, (ii) does not and will not infringe on or violate any copyright,
trademark, U.S. patent, rights of publicity, moral rights or any other third
party right, including without limitation, any music performance or other music
related rights, and (iii) does not and will not contain any Content which
violates any applicable law or regulation ((i), (ii) and (iii) collectively,
the "Rules"). In the event that AOL notifies ICP in writing that any such
Content, as reasonably determined by AOL, does not comply or adhere to the
Rules, then ICP shall use its commercially reasonable best efforts to block
access by AOL Members to such Content. In the event that ICP cannot, through
its commercially reasonable best efforts, block access by AOL Members to such
Content in question, then ICP shall provide AOL prompt written notice of such
fact. AOL may (in addition AOL's other rights under this Agreement, at law or
in equity) then, at its option, either (i) restrict access from the AOL Network
to the Content in question using technology available to AOL or (ii) in the
event access cannot be restricted, direct ICP to remove any such Content. ICP
will cooperate with AOL's reasonable requests to the extent AOL elects to
implement any such access restrictions.
Health and Medical Information Content. ICP represents, warrants and covenants
--------------------------------------
that: (a) ICP will not engage in or facilitate any practice or service on or
through the ICP Programming or the ICP Internet Site that would constitute the
illegal or unlicensed practice of medicine, the practice of pharmacy, or other
regulated professional practice in the health care area, as defined by
applicable state and federal laws, rules and government regulations and/or the
regulations, policies or guidelines of any applicable professional or
accrediting organization; (b) ICP possesses all necessary governmental
authorizations, approvals, consents, licenses, permits, certificates or other
rights and permissions to conduct its business as contemplated by this
Agreement; (c) if any of the Licensed Content professes to provide expert,
professional or other specialty advice or Content (such as, without limitation,
medical or psychological, religious, financial, etc.), ICP shall ensure that all
such Licensed Content is prepared or reviewed by licensed, insured and qualified
practitioners/professionals in such field with expertise on the particular topic
and such Licensed Content complies with applicable standards of the applicable
profession and all applicable laws and regulations; (d) any physicians used to
answer questions from visitors to the ICP Internet Site will be experienced,
qualified and competent to provide answers to the questions posed to them, and
possess any necessary special qualifications, training, or certification
appropriate in the areas in which they answer questions, and will be properly
licensed by the appropriate governing body of each jurisdiction where the nature
of heir conduct through the ICP Internet Site would require such licensing; and
(e) it will promptly provide AOL with such information as AOL may from time to
time reasonably request for the purpose of verifying ICP's compliance with its
obligations under this paragraph. In the event AOL reasonably determines that
there has been a violation of any of the foregoing covenants or if AOL
reasonably determines that any Content within the ICP Programming or the ICP
Internet Site may reasonably be expected to expose AOL or its Affiliates to
legal or financial liability or other adverse consequences, then AOL may (in
addition AOL's other rights under this Agreement, at law or in equity), at its
option, either (i) restrict access from the AOL Network to the Content in
question using technology available to AOL or (ii) in the event access cannot be
restricted, direct ICP to remove any such Content. ICP will cooperate with
AOL's reasonable requests to the extent AOL elects to implement any such access
restrictions.
AOL Network Distribution. The distribution, placements and/or promotions
------------------------
described in this Agreement or otherwise provided to ICP by AOL shall be used by
ICP solely for its own benefit, will link to and promote solely the Licensed
Content within the ICP Internet Site or ICP Programming expressly described on
Exhibit A and will not be resold, traded, exchanged, bartered, brokered or
otherwise offered or transferred to any third party or contain any branding
other than ICP's branding. Further, the Content of all such distribution,
placements and promotions shall be subject to AOL's policies relating to
advertising and promotion, including those relating to AOL's exclusivity
commitments and other contractual preferences to third parties; provided that
the foregoing shall not be deemed to limit AOL's obligations to ICP hereunder.
Changes to AOL Properties. AOL reserves the right to redesign or modify the
-------------------------
organization, structure, "look and feel," navigation and other elements of the
AOL Service, XXX.xxx, CompuServe Service, XxxxxXxxxx.xxx, Digital City, Netscape
Netcenter or any other AOL Property, including without limitation, by adding or
deleting channels, subchannels and/or screens. If AOL eliminates or modifies an
area on an AOL Property in a manner that substantially modifies the nature of
the distribution required under this Agreement in a material adverse fashion,
AOL will work with ICP in good faith to provide ICP with comparable distribution
reasonably satisfactory to ICP.
Accessibility; Kids & Teen Policies. AOL reserves the right, in its reasonable
-----------------------------------
discretion at any time, to designate the ICP Internet Site, ICP Programming and
all linked Interactive Sites, or any portions thereof, as Content targeted to
Kids (children ages 12 and under), Young Teens (children 13-15) and/or Mature
Teens (16-17). In the event ICP disagrees with AOL's designation, ICP shall not
distribute or provide the Content in question on or through the ICP Internet
Site or ICP Programming until the Parties agree upon the proper designation of
such Content. ICP shall ensure that all Content (including all advertising)
distributed on or through the ICP Internet Site or ICP Programming which is
targeted to the above age groups, including but not limited to Content
designated as such by AOL, complies with any relevant AOL policy (Kids, Young
Teens, Mature Teens) including any viewruling obligations. Without limiting
the generality of the foregoing or any other provision of this Agreement, ICP
shall (i) provide clear and prominent notice of collection practices and all
possible uses of information before collecting personal identifying information
from Kids, Young Teens or Mature Teens online; (ii) never post personal
identifying information about Kids, Young Teens or Mature Teens online or sell
or otherwise disclose such information to third parties; (iii) all advertorial
advertising and sponsorships shall be clearly labeled as "advertorial" or with
similar language and (iv) ensure that all chat rooms and message boards are
monitored on a daily basis by staff that has undergone AOL Community Leader
training; and each chat room shall (a) open and close in accordance with a
posted schedule (i.e., no 24/7 access), (b) have a special "help" area for Kids,
Young Teens and/or Mature Teens, as applicable, and (c) be monitored (at least
on a floating basis) by and AOL-trained Community Leader. ICP shall notify AOL
in writing whenever it intends to distribute Content for these age groups on or
through the ICP Internet Site and/or ICP Programming to ensure proper age
restriction categorization.
Member Page. AOL will have no obligation with respect to the Content and
-----------
services available on or through any Member Page including, but not limited to,
any duty to review or monitor any such Content and services. AOL expressly
disclaims any liability to ICP for the Content and services contained in any
Member Page or any expense, claim, demand, costs, loss or damage arising out of
any use of the ICP-provided Content available from, without limitation, a
Community Center or the ICP Internet Site. ICP agrees to release AOL and its
affiliates, including partners, directors, officers, employees and agents from
any and all claims, rights and recourses for such loss or damage.
Contests. ICP shall ensure that any contest, sweepstakes or similar promotion
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conducted or promoted through the ICP Internet Site and/or ICP Programming (a
"Contest") complies with all applicable laws and regulations, except for
Contests sponsored by AOL. ICP shall provide AOL with (i) at least thirty (30)
days prior written notice of any Contest and (ii) upon AOL's request, an opinion
from ICP's counsel confirming that the Contest complies with all applicable
federal, state and local laws and regulations.
Disclaimers. Upon AOL's request, AOL agrees to include within the ICP Internet
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Site and/or ICP Programming a disclaimer (the specific form and substance to be
mutually agreed upon by the Parties) indicating that all Content (including any
products and services) is provided solely by ICP and not AOL, and any
transactions are solely between ICP and AOL Members using or purchasing such
Content and AOL is not responsible for any loss, expense or damage arising out
of the Licensed Content or services provided through the ICP Internet Site or
ICP Programming. In addition, ICP shall prominently provide a notice/disclaimer
on all areas and features in the ICP Programming substantially as follows: "The
following area or feature is provided solely for educational and entertainment
purposes only and is not intended to constitute professional medical or
psychological advice or counseling. If you need medical or psychological
services, please contact a licensed professional in your area. Always follow
the advice of your physician or therapist in regards to treatment information
and considerations, rather than any information contained herein, including
without limitation, in text files, message boards, chat rooms, articles, or
software libraries." ICP shall not in any manner state that AOL recommends or
endorses ICP or its Content. The Parties will review the above disclaimer from
time to time with the intent of minimizing each Party's exposure to liability.
39
Insurance. At all times during the Term, ICP shall maintain insurance coverage
---------
no less than: * * *. ICP shall include AOL as a named insured party on all such
policy or policies. ICP shall provide AOL with a copy of such policy or
policies within sixty (60) days after the Effective Date, failing which, in
addition to all other available remedies, AOL shall be entitled to delay the
launch of the Licensed Content on the AOL Network. From time to time upon AOL's
request, ICP shall provide AOL with certificates from the respective insurance
company(ies) confirming ICP's compliance with this paragraph. ICP shall
promptly notify AOL of any material adverse change in such policy or policies.
Rewards Programs. ICP shall not offer, provide, implement or otherwise make
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available on the ICP Internet Site or ICP Programming 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."
Navigation. In cases where an AOL Member performs a search for ICP through any
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search or navigational tool or mechanism that is accessible or available through
the AOL Network (e.g., promotions, Keyword Search Terms, or any other
navigational tools), AOL shall have the right to direct such AOL Member to the
ICP Internet Site, or any other ICP Interactive Site determined by AOL in its
reasonable discretion.
AOL Look and Feel. ICP acknowledges and agrees that AOL shall own all right,
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title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the ICP Internet Site or ICP Programming (the "AOL Frames"). AOL may, at
its discretion, incorporate navigational icons, links and pointers or other
Content into such AOL Frames.
Operations. AOL shall be entitled to require reasonable changes to the ICP
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Internet Site and ICP Programming to the extent such site will, in AOL's good
faith judgment, adversely affect operations of the AOL Network; provided that
this sentence shall not be deemed to grant AOL any editorial control with
respect to the ICP Internet Site and ICP Programming.
Classifieds. ICP shall not implement or promote any classifieds listing
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features through ICP Programming without AOL's prior written approval. Such
approval may be conditioned upon, among other things, ICP's conformance with any
then-applicable service-wide technical or other standards related to online
classifieds.
Message Boards; Chat Rooms and Comparable Vehicles. Any Content submitted by
--------------------------------------------------
ICP or its agents within message boards, chat rooms or any comparable vehicles
will be subject to the license grant relating to submissions to "public areas"
set forth in the AOL Terms of Service. ICP acknowledges that it has no rights
or interest in AOL Member submissions to message boards, chat rooms or any other
vehicles through which AOL Members may make submissions within the AOL Network.
ICP will refrain from editing, deleting or altering, without AOL's prior
approval, any opinion expressed or submission made by an AOL Member within ICP
Programming except in cases where ICP has a good faith belief that the Content
in question violates an applicable law, regulation, third party right or the
applicable AOL Property's Terms of Service.
Duty to Inform. ICP shall promptly inform AOL of any information related to the
--------------
ICP Internet Site, ICP Programming or the Licensed Content which could
reasonably lead to a claim, demand or liability of or against AOL and/or its
Affiliates by any third party.
Response to Questions/Comments; Customer Service. ICP shall respond promptly
------------------------------------------------
and professionally to questions, comments, complaints and other reasonable
requests regarding the ICP Internet Site, ICP Programming or the Licensed
Content by AOL Members or on request by AOL, and shall cooperate and assist AOL
in promptly answering the same. ICP shall have sole responsibility for customer
service (including, without limitation, order processing, billing, shipping,
etc.) and AOL shall have no responsibility with respect thereto. ICP shall
comply with all applicable requirements of any federal, state or local consumer
protection or disclosure law.
Production Work. In the event that ICP requests any AOL production assistance,
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ICP shall work with AOL to develop detailed production plans for the requested
production assistance (the "Production Plan"). Following receipt of the final
Production Plan, AOL shall notify ICP of (i) AOL's availability to perform the
requested production work, (ii) the proposed fee or fee structure for the
requested production work and (iii) the estimated development schedule for such
work. To the extent the Parties reach agreement regarding implementation of
agreed-upon Production Plan, such agreement shall be reflected in a separate
work order signed by the Parties. All fees to be paid to AOL for any such
production work shall be paid in advance. 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 production standards
available at Keyword "Styleguide." The specific production resources which AOL
allocates to any production work to be performed on behalf of ICP shall 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 the Anchor Tenant Button and the ICP Internet Site ("Routine
Services"), ICP will pay the then-standard fees charged by AOL for such Routine
Services.
Production Tools. AOL shall determine in its sole discretion, which of its
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proprietary publishing tools (each a "Publishing Tool") shall be made available
to ICP in order to develop and implement the Licensed Content during the Term
(e.g., to build Rainman sites). ICP shall be granted a nonexclusive license to
use any such Tool, which license shall be subject to: (i) ICP's compliance with
all rules and regulations relating to use of the Publishing Tools, as published
from time to time by AOL, (ii) AOL's right to withdraw or modify such license at
any time, and (iii) ICP's express recognition that AOL provides all Publishing
Tools on an "as is" basis, without warranties of any kind.
Launch Date. In the event that any terms contained herein relate to or depend
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on the launch date of the ICP Internet Site or other property contemplated by
this Agreement, which launch date is later than the Effective 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 shall be as reasonably
determined by AOL based on the information available to AOL.
Keywords. Any Keyword Search Terms to be directed to the ICP Internet Site
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shall be (i) subject to availability for use by ICP and (ii) limited to the
combination of the Keyword search modifier combined with a registered trademark
of ICP. AOL reserves the right to revoke at any time ICP's use of any Keyword
Search Terms which do not incorporate registered trademarks of ICP. 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; provided that the foregoing shall not be
deemed to limit ICP in obtaining trademark or copyright protection in any term
or phrase not incorporating the AOL Keyword search modifier. This Section shall
survive the completion, expiration, termination or cancellation of this
Agreement.
Accounts. To the extent AOL has granted ICP any accounts on the AOL Service,
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ICP will be responsible for the actions taken under or through its accounts,
which actions are subject to AOL's applicable Terms of Service and for any
surcharges, including, without limitation, all premium charges, transaction
charges, and any applicable communication surcharges incurred by any account
issued to ICP, but ICP will not be liable for charges incurred by any 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 accounts,
related screen names and any associated usage credits or similar rights, will
automatically terminate. AOL will have no liability for loss of any data or
content related to the proper termination of any such account.
II. TRADEMARKS
Trademark License. In designing and implementing any marketing, advertising, or
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other promotional materials (expressly excluding Press Releases) related to this
Agreement and/or referencing the other Party and/or its trade names, trademarks
and service marks (the "Promotional Materials") and subject to the other
provisions contained herein, ICP shall be entitled to use the following trade
names, trademarks and service marks of AOL: the "America Online" brand service,
"AOL" service/software and AOL's triangle logo and, in connection therewith, ICP
shall comply with the AOL styleguide available at keyword: "style guide"; and
AOL and its Affiliates shall be entitled to use the trade names, trademarks and
service marks of ICP (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
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*** Certain informaion on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
40
ownership of the other Party's Marks in accordance with applicable trademark law
and practice. This Section shall survive the completion, expiration, termination
or cancellation of this Agreement.
Rights. Each Party acknowledges that its utilization of the other Party's Marks
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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.
Quality Standards. Each Party agrees that the nature and quality of its
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products and services supplied in connection with the other Party's Marks shall
conform to quality standards communicated in writing by the other Party for use
of its trademarks. 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 shall comply with
all applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
Promotional Materials. Each Party will submit to the other Party, for its prior
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written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials; provided, however, that after 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 in Promotional Materials to the existence of a business relationship
between AOL and ICP, including, without limitation, the availability of the
Licensed Content through the AOL Network, or use of screen shots relating to the
distribution under this Agreement (so long as the AOL Network is clearly
identified as the source of such screen shots) for promotional purposes shall
not require the approval of the other Party. Once approved, the Promotional
Materials may be used by a Party and its affiliates for the purpose of promoting
the distribution of the Licensed Content through the AOL Network 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.
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 shall 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,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. 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, to
grant the licenses granted hereunder 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 materially violate any material 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; (iv) such Party's Promotional Materials will neither infringe on any
copyright, U.S. patent or any other third party right nor violate any applicable
law or regulation and (v) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter hereof
which are not expressly provided for in this Agreement.
IV. 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 disclosure of Confidential Information of the other
Party, other than to its employees, or to its other agents who must have access
to such Confidential Information for such Party to perform its 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 (unless a shorter period is required by an applicable legal requirement)..
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.
V. RELATIONSHIP WITH AOL MEMBERS
Solicitation of Subscribers. (a) During the term of this 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 Members on
behalf of another Interactive Service. More generally, ICP will not send
unsolicited, commercial e-mail (i.e., "spam") or other online communications
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 Member 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 Member that the
information provided could result in commercial e-mail or other online
communications being sent to that AOL Member by ICP or its agents. Any
commercial e-mail or other online communications to AOL Members which are
otherwise permitted hereunder will (a) include a prominent and easy means to
"opt-out" of receiving any future commercial e-mail 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).
(b) ICP shall ensure that its collection, use and disclosure of information
obtained from AOL Members under this Agreement ("Member Information") complies
with (i) all applicable laws and regulations and (ii) AOL's standard privacy
policies, available on the AOL Service at the keyword term "Privacy" (or, in the
case of the ICP Internet Site, ICP's standard privacy policies so long as such
policies are prominently published on the site and provide adequate notice,
disclosure and choice to users regarding ICP's collection, use and disclosure of
user information). ICP will not disclose Member Information collected hereunder
to any third party in a manner that identifies AOL Members as end users of an
AOL product or service or use Member Information collected under this Agreement
to market another Interactive Service.
Email Newsletters. Any email newsletters sent to AOL Members by ICP or its
------------------
agents shall (i) be subject to AOL's policies on use of the email functionality,
including but not limited to AOL's policy on unsolicited bulk email, (ii) be
sent only to AOL Members requesting to receive such newsletters, (iii) not
contain Content which violates AOL's Terms of Service, and (iv) not contain any
advertisements, marketing or promotion for any other Interactive Service.
AOL Member Communications. To the extent ICP is otherwise permitted to send
--------------------------
communications to AOL Members (in accordance with the other requirements
contained herein): in any such communications to AOL Members on or off the ICP
Internet Site (including, without limitation, e-mail solicitations), ICP will
limit the subject matter of such communications to those categories of products,
services and/or content that are specifically contemplated by this Agreement and
will not actively encourage AOL Members 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 ICP Internet Site 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 Member communications, in
the event that ICP encourages an AOL Member to purchase products through such
communications, ICP shall ensure that (a) the AOL Network is expressly promoted
as the primary means through which the AOL Member can access the ICP Internet
Site (including without limitation by stating the applicable Keyword Search Term
and including direct links to specific offers within the ICP Internet Site) and
(b) any link to the ICP Internet Site will link to a page which indicates to the
AOL Member that such user is in a site which is affiliated with the AOL Network.
Customer Data; AOL Data. Any data generated directly from ICP Programming or
-----------------------
ICP Tools, including, without limitation, customer names, addresses and medical
information frequency but excluding * * * information and AOL screennames (the
"Customer Data"), shall be and remain * * * . ICP agrees that AOL may use the
Customer Data subject to the terms of this Agreement and AOL's then-applicable
privacy policies; provided that both Parties shall use customer-specific medical
profile information on a customer-by-customer basis in accordance with both
Parties' applicable
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*** Certain informaion on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
41
privacy policies. AOL agrees that during the Term, ICP may use the Customer Data
subject to the terms of this Agreement and AOL's then-applicable privacy
policies; provided that ICP (a) shall comply with the foregoing paragraphs of
this Section V of this Exhibit C, (b) shall provide users the right to have
their Customer Data deleted from any database created by or on behalf of ICP,
and (c) shall not have the right to use the Customer Data to market or promote
any consumer direct information, services or products reasonably construed to be
in competition with AOL or any AOL Property. Any data provided by AOL to ICP
(e.g., usage reports) (the "AOL Data") shall be and remain the property of AOL,
and the AOL Data will be promptly returned to AOL by ICP in the form in which
such data is maintained by ICP or, if AOL so elects, will be destroyed, upon (i)
AOL's request, (ii) expiration or termination of this Agreement for any reason,
or (iii) with respect to any particular AOL Data, on such earlier date that the
same is no longer required by ICP in order to provide the services required
hereunder. ICP will not use the AOL Data for any purpose other than that of
providing such services, nor will the AOL Data, or any part thereof, be
disclosed, sold, assigned, leased, or otherwise disposed of to third parties by
ICP or commercially exploited by or on behalf of ICP, its employees or agents.
ICP will not possess or assert any lien or other right against or to the AOL
Data. The Parties agree to amend the provisions of this paragraph from time to
time to in good faith to the extent necessary to comply with applicable law,
rule or regulation; provided that if any such amendment to the provisions of
this paragraph has, or is likely to have, an adverse effect on either Party,
then such Party may refer such matter to the Management Committee for
resolution.
VI. TREATMENT OF CLAIMS
Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
---------
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE
THE AOL NETWORK OR 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 THE FOREGOING SHALL NOT
RESTRICT A PARTY'S RIGHTS FOR INDEMNIFICATION FOR THIRD PARTY CLAIMS AS SET
FORTH IN THE "INDEMNITY" SECTION BELOW. EXCEPT AS PROVIDED BELOW IN THE
"INDEMNITY" SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE
THAN * * * ; PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE FOR THE AGGREGATE
AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE PROVISIONS
OF THIS AGREEMENT; AND PROVIDED FURTHER THAT THE FOREGOING LIABILITY CAP SHALL
NOT APPLY TO (1) EITHER PARTY'S BREACH OF THIS AGREEMENT INVOLVING FRAUD,
INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OR (2) EITHER PARTY'S INTENTIONAL
BREACH OF ANY TERM, CONDITION OR OBLIGATION UNDER THIS AGREEMENT.
No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
------------------------
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK,
ANY AOL PUBLISHING TOOLS, OR THE LICENSED CONTENT, 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, EACH OF AOL AND ICP SPECIFICALLY
DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF AOL NETWORK OR THE ICP
INTERNET SITE.
Indemnity. Each 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
obligation, representation, or warranty of this Agreement.
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
shall give the other Party (the "Indemnifying Party") prompt written notice of
such Action. Such notice shall (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 shall have a period of ten (10) days
after delivery of such notice to respond. The Indemnified Party shall
cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party
and its counsel in the defense and the Indemnified Party shall have the right to
participate fully, at its own expense, in the defense of such Action. If a
dispute arises over whether the Party requesting indemnification hereunder is so
entitled, the Party requesting indemnification shall be free, without prejudice
to any of such Party's rights hereunder, to compromise or defend (and control
the defense of) such Action. Any compromise or settlement of an Action shall
require the prior written consent of both Parties hereunder, such consent not to
be unreasonably withheld or delayed.
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 VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VII. ARBITRATION
(a) The Parties shall 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
timeframe, the Dispute shall be submitted to the Management Committee for
resolution. For ten (10) days after the Dispute was submitted to the Management
Committee, the Management Committee shall have the exclusive right to resolve
such Dispute; provided further that the Management Committee shall have the
final and exclusive right to resolve Disputes arising from any provision of this
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 (10) 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. In the event the Management
Committee elects not to retain a mediator, the Dispute will be subject to the
resolution mechanisms described below. "Management Committee" shall mean a
committee made up of a senior executive from each of the Parties for the purpose
of resolving Disputes under this Section and generally overseeing the
relationship between the Parties contemplated by this Agreement. Neither Party
shall seek, nor shall be entitled to seek, binding outside resolution of the
Dispute unless and until the Parties have been unable to amicably resolve the
dispute as set forth in this paragraph (a) and then, only in compliance with the
procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights, including
but not limited to intellectual property and confidentiality, and (ii) any
provision of this Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms (which shall be resolved
by the Parties solely and exclusively through amicable resolution as set forth
in paragraph (a), any Dispute not resolved by amicable resolution as set forth
in paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington, D.C. and shall be initiated and conducted in accordance with the
Commercial Arbitration Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("Demand"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures shall
not apply in order to promote the efficient arbitration of Disputes where the
nature of the Dispute, including without limitation the amount in controversy,
does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party shall
name an arbitrator within ten (10) days after the delivery of the Demand. The
two arbitrators named by the Parties may have prior relationships with the
naming Party, which in a judicial setting would be considered a conflict of
interest. The third arbitrator,
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the Securities and Exchange Commission. Confidential treatment has been
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42
selected by the first two, shall be a neutral participant, with no prior working
relationship with either Party. If the two arbitrators are unable to select a
third arbitrator within ten (10) days, a third neutral arbitrator will be
appointed by the AAA from the panel of commercial arbitrators of any of the AAA
Large and Complex Resolution Programs. If a vacancy in the arbitration panel
occurs after the hearings have commenced, the remaining arbitrator or
arbitrators may not continue with the hearing and determination of the
controversy, unless the Parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law, shall
govern the arbitrability of all Disputes. The arbitrators shall allow such
discovery as is appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply in
---
toto. The arbitrators may enter a default decision against any Party who fails
------
to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages
only. Any award by the arbitrators shall be accompanied by a written opinion
setting forth the findings of fact and conclusions of law relied upon in
reaching the decision. The award rendered by the arbitrators shall be final,
binding and non-appealable, and judgment upon such award may be entered by any
court of competent jurisdiction. The Parties agree that the existence, conduct
and content of any arbitration shall be kept confidential and no Party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each Party's financial statements.
(f) Each Party shall 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"). The remaining costs of the
arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be born equally by the parties. Notwithstanding the foregoing,
the arbitrators may modify the allocation of Arbitration Costs and award
Attorneys' Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively, "Non-
Arbitration Claims") shall be brought in a court of competent jurisdiction in
the State of New York. Each Party irrevocably consents to the exclusive
jurisdiction of the courts of the State of New York and the federal courts
situated in the State of New York, over any and all Non-Arbitration Claims and
any and all actions to enforce such claims or to recover damages or other relief
in connection with such claims or to enforce a judgment rendered in an
arbitration proceeding.
VIII. MISCELLANEOUS
Auditing Rights. Each Party shall maintain complete, clear and accurate records
---------------
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, AOL shall have the right, at its expense, to
conduct a reasonable and necessary copying and inspection of portions of the
Records of ICP that are directly related to amounts payable to AOL pursuant to
this Agreement, which right may, at AOL's option, be exercised by directing an
independent certified public accounting firm to conduct such inspection. For
the sole purpose of ensuring compliance with this Agreement, ICP shall have the
right, at its expense, to direct an independent certified public accounting firm
subject to strict confidentiality restrictions to conduct a reasonable and
necessary copying and inspection of portions of the Records of AOL that are
directly related to amounts payable to ICP pursuant to this Agreement. Any such
audit may be conducted after twenty (20) business days prior written notice,
subject to the following. Such audits shall not be made more frequently than
once every twelve months. No such audit of AOL shall occur during the period
beginning on June 1 and ending October 1. No such audit of ICP shall occur
during the period beginning on December 1 and ending April 1. In lieu of
providing access to its Records as described above, AOL shall be entitled to
provide ICP with a report from an independent certified public accounting firm
confirming the information to be derived from such Records.
Excuse. Neither Party shall 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.
Independent Contractors. The Parties to this Agreement are independent
-----------------------
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall 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 shall 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.
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 electronic mail on the AOL Network (to screenname "AOLNotice" in
the case of AOL) or by confirmed facsimile; (ii) on the delivery date if
delivered personally to the Party to whom the same is directed; (iii) one
business day after deposit with a commercial overnight carrier, with written
verification of receipt; or (iv) five business days after the mailing date,
whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs (fax no. 703-
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, except as otherwise specified herein, the notice address shall 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.
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 shall 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 shall be
and remain in full force and effect.
Return of Information. Upon the expiration or termination of this Agreement,
---------------------
each Party shall, 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 by the other Party.
Survival. Sections IV, V, VI, VII and VIII of this Exhibit C, shall survive the
--------
completion, expiration, termination or cancellation of this Agreement. In
addition, all payment terms of this Agreement and any provision which, by its
nature, must survive the completion, expiration, termination or cancellation of
this Agreement, shall survive the completion, expiration, termination or
cancellation of this Agreement.
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 shall 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.
Amendment. No change, amendment or modification of any provision of this
---------
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
Further Assurances. Each Party shall take such action (including, but not
------------------
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by the other Party for the implementation or continuing
performance of this Agreement.
Assignment. ICP shall not assign this Agreement or any right, interest or
----------
benefit under this Agreement without the prior written consent of AOL.
Assumption of this Agreement by any successor to ICP (including, without
limitation, by way of merger or consolidation) shall be subject to AOL's prior
written approval. Subject to the foregoing, this Agreement shall be fully
binding upon, inure to the benefit of and be enforceable by the Parties hereto
and their respective successors and assigns.
Subcontractors. To the extent ICP utilizes consultants or subcontractors to
---------------
perform a material portion of its obligations under this Agreement, such
consultants and/or subcontractors shall be subject to AOL's prior written
approval and ICP shall provide AOL with direct contact information for the
employees of such consultants and/or subcontractors who are responsible for
performing such obligations, which employees shall be available during business
hours for consultation with AOL.
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 shall 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 shall remain in full force and effect.
43
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.
Applicable Law. This Agreement shall be interpreted, construed and enforced in
--------------
all respects in accordance with the laws of the State of New York except for its
conflicts of laws principles.
Export Controls. Both parties shall adhere to all applicable laws, regulations
---------------
and rules relating to the export of technical data and shall 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.
Headings. The captions and headings used in this Agreement are inserted for
--------
convenience only and shall not affect the meaning or interpretation of this
Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which
------------
shall be deemed an original and all of which together shall constitute one and
the same document.
44
EXHIBIT D
---------
TOOLS AND FUNCTIONALITY CATEGORIES
Exibit D-1 - Integrated Tools and Functionality Categories:
-----------------------------------------------------------
1. Namespace - ICP shall use the AOL namespace * * * (including ICP Tools
therein). ICP will connect its own registration system to the AOL
registration systems through standard integration mechanisms to be
documented in the implemenation plan. With respect to AOL namespace
user registration, ICP agrees to collect the data requested by AOL and
transfer such data to AOL in a real time data transfer. If ICP
collects information about users in such registration process in
addition to information supplied by the users during the registration
process, such information shall made available to AOL, in a format and
timeframe as the Parties shall mutually agree, and subject to the
Parties applicable privacy policies and applicable legal
requirements;*
2. Web-hosted calendaring - ICP will use AOL's Web-hosted calendaring
functionality and tools to provide customized calendars to * * *. As
part of such integration, ICP will create all events in event data
format compatible with the AOL calendar so that health events can be
automatically added to AOL calendar; and
3. Real time instant online messaging functionality (e.g., ICQ(TM) and
AOL Instant Messenger(TM)).
Exibit D-2 - Additional Tools and Functionality Categories:
-----------------------------------------------------------
1. community/communications tools (e.g., chat, message boards, voice
message, IP telephony, email, address book, web-based email and
greeting cards but specifically excluding real time instant online
messaging functionality);
2. navigation services (e.g., search and directory products, white pages,
and yellow pages);
3. personalization services (e.g., homesteading, hosting, data exchange
and calendaring functions); and
4. commerce/content aggregation services.
* With respect to AOL namespace and user registration technology, AOL shall
have the right to pass-through * * * to ICP to the extent necessary for proper
functionality and performance of such namespace and user registration
technology.
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
45
EXHIBIT E
---------
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS
Pursuant to Section 3.3 of the Anchor Tenant Agreement between ______________
("ICP") and America Online, Inc. ("AOL"), dated as of _________________, 1999
(the "Agreement"), the following report is delivered to AOL for the period
beginning _____________ and ending __________ (the "Period"):
I. Promotional Commitments
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Period:
Type of Promotion Date(s) of Duration/Circulation of Relevant Contract
Promotion Promotion Section
----------------------------------------------------------------------------------------------
1.
----------------------------------------------------------------------------------------------
2.
----------------------------------------------------------------------------------------------
3.
IN WITNESS WHEREOF, this Certificate has been executed this ___ day of
___________, 199_.
-----------------------------------
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
Date:
------------------------------
46
EXHIBIT F
---------
OPERATING STANDARDS
-------------------
1. ICP Internet Site Infrastructure. ICP will be responsible for all
--------------------------------
communications, hosting and connectivity costs and expenses associated with
the ICP Internet Site. ICP will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet traffic
demands on the ICP Internet Site from the AOL Network. ICP will design and
implement the network between the AOL Service and ICP Internet Site such
that (i) no single component failure will have a materially adverse impact
on AOL Members seeking to reach the ICP Internet Site from the AOL Network
and (ii) no single line under ICP's reasonable control will run at more
than * * *average utilization for a 5-minute peak in a daily period. In
this regard, ICP will provide AOL, upon request, with a detailed network
diagram regarding the architecture and network infrastructure supporting
the ICP Internet Site. In the event that ICP elects to create a custom
version of the ICP Internet 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.
2. Optimization; Speed. ICP will use commercially reasonable efforts to ensure
-------------------
that: (a) the functionality and features within the ICP Internet Site are
optimized for the client software then in use by AOL Members; and (b) the
ICP Internet Site is designed and populated in a manner that minimizes
delays when AOL Members attempt to access such site. At a minimum, ICP will
ensure that the ICP Internet Site's data transfers initiate within fewer
than * * * on average. Prior to commercial launch of any material
promotions described herein, ICP will permit AOL to conduct performance and
load testing of the ICP Internet Site (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.
3. 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 the ICP Internet Site (an "ICP Technical
Problem") promptly following notice thereof. In the event that ICP is
unable to promptly resolve an ICP Technical Problem 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.
4. Monitoring. ICP will ensure that the performance and availability of the
----------
ICP Internet Site is monitored on a * * * 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 the ICP Internet Site.
5. 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, banking/financial information, and member address
information) to and from the ICP Internet Site. ICP will facilitate
periodic reviews of the ICP Internet Site 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.
6. Technical Performance.
---------------------
i. ICP will design the ICP Internet Site to support the AOL-Client
embedded versions of the Microsoft Internet Explorer 3.XX and 4.XX
browsers (Windows and Macintosh), the Netscape Browser 4.XX and make
commercially reasonable efforts to support all other AOL browsers
listed at: "xxxx://xxxxxxxxx.xxxx.xxx.xxx."
ii. To the extent ICP creates customized pages on the ICP Internet Site
for AOL Members, ICP 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" and
------------------------------
referenced under the heading "Browser Detection." In the event AOL
changes any requirements for the ICP Internet Site at such URL, ICP
shall have a reasonable period of time in which to incorporate such
new requirements into the ICP Internet Site and will not be deemed in
breach of this Agreement for any delay to the extent such delay is
caused by such changed requirement
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 allow them to be cached
or not cached as outlined in RFC 1945.
v. Prior to releasing material, new functionality or features through the
ICP Internet Site ("New Functionality"), ICP will use commercially
reasonable efforts to either (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. Should any new material, new
functionality or features through the ICP Internet 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.
7. AOL Internet Services Partner 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
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
47
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 ICP Internet Site. Support to be provided by AOL is
contingent on ICP providing to AOL demo account information (where
applicable), a detailed description of the ICP Internet Site's software,
hardware and network architecture and access to the ICP Internet Site for
purposes of such performance and the coordination load testing as AOL
elects to conduct.
8. ICP Programming. The terms and conditions of this Exhibit applicable to the
---------------
ICP Internet Site shall apply equally to any ICP Programming that is (a)
programmed in HTML or (b) web-based.
9. Problem Resolution. ICP agrees to use commercially reasonable efforts to
------------------
provide the following service levels in response to problems with the ICP
Internet Site:
. For material functions of the ICP Internet Site that have become
inoperable, ICP will use its best efforts to provide a bug fix or
workaround within * * * after ICP's receipt of the first report of
such error.
. For other functions of the ICP Internet Site that are impaired or
otherwise fail to operate in accordance with agreed upon
specifications, ICP will provide a bug fix or workaround within* *
* after the first report of such error.
. For all other problems with the functionality or performance of the
ICP Internet Site, ICP will use commercially reasonable efforts to
fix such problems within * * * after the first report of such
problems, or if not reasonably practicable, as soon as reasonably
feasible.
For any problem that is not, or reasonably cannot be, resolved within the
above time frames, ICP shall provide AOL with prompt notice of ICP's
inability to timely remedy such problem. Within thirty (30) days of the
Effective Date, the Parties shall mutually agree on the procedures for
implementing the above problem resolution process (e.g., exchanging contact
names, email addresses and telephone numbers).
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
48
EXHIBIT G
---------
KEYWORD GUIDELINES
------------------
PRINT/GRAPHIC
. Preferred listing: (AOL Logo appears) America Online Keyword: Xx. Xxxx
America Online Keyword: Xx. Xxxx
. If necessary, due to space constraints, listing may (pending approval)
---
appear as follows: AOL Keyword: Xx. Xxxx
. Every effort should be made to have `America Online' spelled out
. Capitalization - listing should appear in initial caps only
Note: When America Online is abbreviated to AOL - AOL must appear in
----
all caps. K of Keyword must always be capitalized
. Font, Font style and Size must all be consistent
. Listing size must be of equal prominence to that of any/all other URLs
featured
BROADCAST/RADIO
. America Online Keyword must announced entirely (even if an accompanying
graphic is set with AOL versus America Online)
Example voiceover would read:
"For more information, please visit America Online Keyword: Xx. Xxxx"
. AOL must approve all uses prior to usage
----------------------------------------
49
EXHIBIT H
---------
FORM OF TIME WARRANT
--------------------
50
EXHIBIT I
---------
FORM OF PAGE VIEW WARRANT
-------------------------
51
EXHIBIT J
---------
FORM OF PMRA WARRANT
--------------------
52
