CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
INTERACTIVE MARKETING AGREEMENT
This Interactive Marketing Agreement (the "Agreement"), dated as of
November 1, 1997 (the "Effective Date"), is between America Online, Inc.
("AOL"), a Delaware corporation, with offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx
00000, and XxxxxxxxxXxxxx.xxx Inc. ("B&N"), a Delaware corporation, with offices
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. AOL and B&N may be referred to
individually as a "Party" and collectively as "Parties."
INTRODUCTION
AOL and B&N each desires to enter into an interactive marketing
relationship whereby AOL will promote and distribute an interactive site
referred to (and further defined) herein as the Affiliated B&N Site. This
relationship is further described below and is subject to the terms and
conditions set forth in this Agreement. Defined terms used but not defined in
the body of the Agreement will be as defined on Exhibit A attached hereto.
TERMS
1. PROMOTION, DISTRIBUTION AND MARKETING.
1.1. AOL Promotion of Affiliated B&N Site.
As described more fully herein, AOL shall provide B&N with
promotions through the AOL Network for the Affiliated B&N Site
(the "Promotions"). The Promotions shall be generally in
accordance with the Carriage Plan and other materials attached
hereto as Exhibit G, subject to changes therein in AOL's
reasonable editorial discretion which are (i) consistent with
the mutual objectives, intentions and relationships of the
Parties as set forth in this Agreement and (ii) designed to
satisfy the sales and Impression thresholds and Level
requirements set forth in this Agreement. Specific placements
for Promotions will include an "Anchor Tenant" position within
the Books, Video, and Music Department of the AOL Service
Shopping Channel, integrated links to the Affiliated B&N Site
from within the AOL Service "AOL Find" area and the Channel
"Search & Explore" area, and a placement during * * * of the
aggregate Impressions each * * * during the Initial Term made
on the * * * of the AOL Service Shopping Channel. AOL reserves
the right to redesign or modify the organization, structure,
"look and feel," navigation, practices and other elements of
the AOL Service at any time, provided that, if such redesign
or modification materially and adversely affects the
effectiveness of the Promotions in selling Products, AOL will
provide the Promotions with comparable promotional placement
to that existing during the Initial Term prior to such
redesign or modification, reasonably satisfactory to B&N.
1.2. Impressions.
1.2.1. Impressions Commitments. AOL will deliver or cause to be
delivered at least the following annual Impressions for the
Promotions (each an "Annual Minimum"): * * * Impressions in
Year 1, * * * Impressions in Year 2, * * * Impressions in Year
3 and * * * Impressions in Year 4.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
In addition, for each Year during the Initial Term, AOL shall
deliver or cause to be delivered to B&N an additional * * *
Impressions in Level A, * * * Impressions in Level B and * * *
Impressions in Level C (as such Levels are defined below). The
placements for such additional Impressions within such Levels
shall be as determined by AOL in its reasonable editorial
discretion. B&N shall notify AOL prior to the beginning of
each Year (except in the case of Year 1, promptly after the
date of execution of this Agreement) of its election as to
whether to use such Impressions during such Year to promote
B&N's sale of either Software (as defined below) or magazines
(but not both), provided that any change in election from the
prior Year's election shall be subject to AOL's approval in
its sole discretion. The Promotions associated with such
Impressions shall link directly to the homepage selling such
Product associated with the Affiliated B&N Site.
Notwithstanding the foregoing, AOL shall have the right before
any Year (other than Year 1) to buy out B&N's remaining rights
to such additional Impressions by reducing each of B&N's
subsequent guaranteed payments under Section 4.1 by an amount
each * * *.
1.2.2. Distribution. The Annual Minimums for each Year will be
delivered across inventory Levels A, B and C (as defined, and
collectively, the "Levels"). In Year 1, AOL will deliver no
less than * * * of each Annual Minimum in Level A,
approximately * * * of each Annual Minimum in Level B, and no
more than * * * of each Annual Minimum in Level C. In each of
Year 2, Year 3 and Year 4, AOL will deliver no less than * * *
of each Annual Minimum in Level A, approximately * * * of each
Annual Minimum in Level B, and no more than * * * of each
Annual Minimum in Level C. AOL will use reasonable efforts to
accommodate B&N's requests to re-allocate the Impressions
distribution among the Levels (subject to availability),
provided that the Parties can mutually agree upon a formula
for adjusting the aggregate Impressions commitments and
thresholds described in this Agreement based on the relative
value of the Impressions being re-allocated. AOL will use
reasonable efforts to deliver at least * * * of each Annual
Minimum within the * * * quarter of each calendar year
(excluding * * * quarter of 1997) and at least * * * of each
Annual Minimum between November 1 and Christmas Day of each
calendar year (excluding such period of 1997), in each case
across Levels substantially in accordance with the percentages
set forth above. Unless B&N agrees otherwise, not more than *
* * of Impressions in Year 1 will be listbox Promotions. In
any other Year, the Parties will mutually agree in good faith
on the maximum percentage of listbox Impressions based upon
the relative Book-selling performance of such listbox
Impressions. AOL, in its discretion, may provide Promotions
with Impressions on the AOL Service * * * or Impressions of
similar quality to the * * * as of the date hereof as
determined by AOL in its reasonable discretion (collectively,
" * * * Impressions"). If in Year 1, Transaction Revenues for
such Year do not equal or exceed * * * and B&N is not then in
breach under this Agreement, then AOL shall provide Promotions
with at least * * * Impressions in Year 2. If in Year 2,
Transaction Revenues for such Year do not equal or exceed * *
* and B&N is not then in breach under this Agreement, then AOL
shall provide Promotions with at least * * * Impressions in
Year 3. If in Year 3, Transaction Revenues for such Year do
not equal or exceed * * * and B&N is not then in breach under
this
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Agreement, then AOL shall provide Promotions with at least * *
* Impressions during Year 4. All * * * Impressions shall be
deemed bonus Impressions and shall not be applied toward the
Annual Minimums. (Notwithstanding the foregoing, AOL is not
guaranteeing that the Affiliated B&N Site will achieve any
specific level of Transaction Revenues and AOL will not be in
breach of this Agreement solely based upon the failure of the
Affiliated B&N Site to achieve any specific level of
Transaction Revenues.)
1.2.3. Windfalls. AOL will not be obligated to provide in excess of
the Annual Minimum for the applicable Year. If AOL exceeds an
Annual Minimum by more than * * * in the applicable Year
(e.g., by more than * * * Impressions in Year 1), the excess
Impressions above such Annual Minimum (the "Excess") will
serve to reduce the subsequent Year's Annual Minimum by an
amount equal to the Excess, subject to an aggregate reduction
of no greater than * * * of the prior Year's Annual Minimum.
1.2.4. Shortfalls. AOL will, in good faith, attempt to fulfill each
Year's Annual Minimum; provided that a shortfall in
Impressions at the end of a Year (a "Shortfall") will not be
deemed a breach of the Agreement by AOL unless such shortfall
results from the bad faith or willful misconduct of AOL. Any
Shortfall will be added to the Annual Minimum for the
subsequent Year. In the event there is a Shortfall in
Impressions as of the end of the Initial Term (a "Final
Shortfall"), AOL will provide B&N (for its use) with
advertising which has a total value, based on AOL's
then-current undiscounted advertising rate card (the "Rate
Card") discounted by * * * , equal to the value of the Final
Shortfall (determined by multiplying the percentage of
Impressions that were not delivered by the total, guaranteed
payment provided for below, and taking into consideration the
relative value of the Impressions included in such Final
Shortfall). Such advertising shall be delivered to B&N on the
AOL Network within a reasonable period of time following the
Initial Term.
1.2.5. Satisfaction. AOL will not be required to deliver or cause to
be delivered in excess of * * * Impressions (the "Aggregate
Threshold"). The Annual Minimum for a given Year will be
deemed to be satisfied in the event gross Site Revenues for
such Year * * * (in the case of Year 1), * * * (in the case of
Year 2), * * * (in the case of Year 3) and * * * (in the case
of Year 4). All Impressions commitments hereunder (including,
without limitation, any shortfall remedies, but not including
placement commitments) will be deemed to be satisfied at any
such time as gross Site Revenues exceed * * * .
1.3. Promotions. The specific B&N Content to be contained within
the Promotions (including, without limitation, advertising
banners and contextual promotions) (the "Promo Content") will
be determined by B&N, subject to AOL technical limitations and
AOL's then-applicable standard policies relating to
advertising and promotions. B&N will consistently and
meaningfully update the Promo Content to be contained within
the Promotions on a no-less- than bi-weekly basis. The Parties
shall jointly consult from time to time regarding the Promo
Content to ensure that it is designed to maximize performance.
Except to the extent expressly described herein, including
without limitation as provided in Section 1.1,
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the specific form, placement, duration and timing of the
Promotions will be as determined by AOL in its reasonable
editorial discretion. The Parties acknowledge that the pages
on the AOL Network are viewable in their * * * and,
accordingly, * * * . In the event for any reason any pages on
the AOL Network contain a * * * , B&N Promotions * * * without
B&N's prior written approval, which will not be unreasonably
withheld or delayed taking into consideration (i) AOL's
demonstration of its ability to reliably track Impressions to
the * * * portions of the pages containing the Promotions and
(ii) the comparable effectiveness of such * * * Impressions to
those * * * , in each case as demonstrated by test results
reasonably acceptable to B&N. In addition, upon B&N's request
from time to time at least fifteen (15) days, where possible,
prior to a proposed B&N-sponsored event (e.g., author chats),
AOL shall provide B&N with an electronic auditorium on the AOL
Service for B&N's exclusive use at a specified time for such
event, subject to AOL approval of such event, which shall not
be unreasonably withheld or delayed (taking into consideration
AOL's reasonable assessment of the estimated audience size
which a proposed event will attract). AOL shall also supply
pop-up capabilities for such auditorium to allow B&N to sell
Books to auditorium guests during such event. B&N and AOL
shall cooperate to promote such auditorium events on the AOL
Service (including through AOL Live). In connection with any
such event, in addition to the aforementioned notice
requirement, B&N will comply with AOL's other standard
requirements related to booking and implementation of
auditorium events.
1.4. B&N Promotion of Affiliated B&N Site and AOL. B&N will promote
the AOL Service and the availability of the Affiliated B&N
Site as set forth in Exhibit B.
1.5. Monthly Review. Within thirty (30) days (or such lesser period
as monthly reports are generally provided to AOL's other
significant commerce partners) after the end of each calendar
month during the Term, AOL will provide B&N with a review of
performance of the Promotions for such month, which will
include standard AOL reporting with respect to Impressions and
available "click-through" information, demographic and usage
information generally made available by AOL to its significant
commerce partners, and other information reasonably requested
by B&N.
2. AFFILIATED B&N SITE.
2.1. Content. B&N will market and sell through the Affiliated B&N
Site a comprehensive offering of Books. Subject to the
restrictions set forth below in this Section 2.1 and the other
terms and conditions of this Agreement, B&N may also market
and sell through the Affiliated B&N Site (i) the following
other products currently offered for sale in retail bookstores
operated by its affiliates: books-on-tape, magazines,
calendars, prepackaged computer software (including video
games) ("Software"), greeting cards, diaries, bookmarks,
booklights, bookends, bookshelves, prerecorded music compact
disks and tapes, prerecorded videotapes, coffee and B&N
insignia-branded merchandise such as mugs, T-shirts,
sweatshirts and totebags), and (ii) other products consented
to by AOL. B&N will review, delete, edit, create, update and
otherwise manage all Content available on or through the
Affiliated B&N Site which it controls in accordance with the
terms of this Agreement. B&N will ensure that the Affiliated
B&N Site does not in any respect promote, advertise or market
any Interactive Service. Except as otherwise set forth in
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this Agreement or agreed to by AOL, neither the Promotions nor
any pages on the Affiliated B&N Site directly linked to the
Promotions ("Linked Pages") will contain promotions, links,
sponsorships or other Content (a) relating to any Products
other than Books or (b) otherwise in conflict with AOL's
standard advertising policies. On any pages within the
Affiliated B&N Site directly linked to the Linked Pages,
Content relating to any Products other than Books will be
non-prominent and ancillary to Book-related Content. Subject
to the last sentence of Section 3.3, the Affiliated B&N Site
will not contain any material, non-Book- related, third party
Content components (e.g. an aggregated offering of
sports-related links), except as otherwise mutually agreed
upon by the Parties. Nothing in this Section 2.1 is intended
to restrict B&N from selling banner or similar advertising on
the Affiliated B&N Site or the Linked Pages, except for
products which AOL has notified B&N in writing are restricted
as a result of written agreements entered into by AOL with
third party retailers of such products (subject to the last
sentence of Section 3.3).
2.2. Production Work. Except as agreed to in writing by the Parties
pursuant to the "Production Work" section of the Standard Legal
Terms & Conditions attached hereto as Exhibit E, B&N will be
responsible for all production work associated with the
Affiliated B&N Site, including all related costs and expenses.
2.3. Hosting; Communications. B&N will be responsible for all
communications, hosting and connectivity costs and expenses
associated with the Affiliated B&N Site. In addition, B&N
shall provide all computer, telephone and other equipment or
resources necessary for B&N to access the AOL Service. B&N
will create a mirrored version of the Affiliated B&N Site in
order to comply with the terms of this Agreement. B&N will
bear responsibility for the cost of such mirrored site, which
site will be hosted by AOL provided that (i) AOL's hosting
price and terms are reasonably competitive in all material
respects with others in the industry and (ii) the quality of
service supplied by AOL is reasonably satisfactory to B&N. B&N
will utilize a dedicated high speed connection to maintain
quick and reliable transport of information to and from the
B&N data center and AOL's designated data center.
2.4. Technology. B&N shall take all commercially reasonable steps
necessary to conform its promotion and sale of Products
through the Affiliated B&N Site to the then-existing
technologies identified by AOL which are optimized for the AOL
Service. AOL shall be entitled to require reasonable changes
to the Content (including, without limitation, the features or
functionality) within any Linked Pages to the extent such
Content will, in AOL's good faith judgment, adversely affect
any technical aspect of the AOL Service. AOL reserves the
right to review and test the Affiliated B&N Site from time to
time to determine whether the site is compatible with AOL's
then-available client and host software and the AOL Service.
2.5. Product Offering. B&N will use commercially reasonable efforts
to ensure that the Affiliated B&N Site includes all of the
Products and other Content (including, without limitation, any
features, offers, contests, functionality or technology) that
are then made available by or on behalf of B&N through any
Additional B&N Channel; provided, however, that: (a) such
inclusion will not be required where it is commercially or
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technically impractical to either Party (i.e., inclusion would
cause either Party to incur substantial incremental costs);
(b) any non- Book-related Product offerings which would
otherwise be required by such inclusion remain subject to
Section 2.1 and the other terms of this Agreement; and (c)
certain limited special promotions for third parties may be
omitted, provided that comparable promotions are offered on
the Affiliated B&N Site pursuant to Section 2.8.
2.6. Special Features/Collections. B&N will, upon AOL's reasonable
request, create for offering on the Affiliated B&N Site
(within thirty (30) days of such request) and manage specific,
cobranded (i) topical collections of books (including an "AOL
Books" collection) and (ii) topical search features, each to
be linked to corresponding portions of the AOL Service.
2.7. Pricing and Terms. B&N will use commercially reasonable
efforts to ensure that: (a) the prices (and any other required
consideration) for Products in the Affiliated B&N Site do not
exceed the prices for substantially similar Products offered
by or on behalf of B&N through any Additional B&N Channel; (b)
the terms and conditions related to Products in the Affiliated
B&N Site are no less favorable in any respect to the terms and
conditions for substantially similar Products offered by or on
behalf of B&N through any Additional B&N Channel; and (c) both
the prices and the terms and conditions related to Products in
the Affiliated B&N Site are reasonably competitive in all
material respects with the prices and terms and conditions for
substantially similar Products generally offered online by
other National Book Retailers.
2.8. Special Offers. B&N will promote through the Affiliated B&N
Site on a regular and consistent basis special offers
exclusively available to AOL Members, e.g., price discounts,
shipping specials, etc. (the "Special Offers"). B&N will
provide AOL with reasonable prior notice of Special Offers so
that AOL can market the availability of such Special Offers in
the manner AOL deems appropriate in its editorial discretion,
subject to the terms and conditions hereof.
2.9. Operating Standards. B&N will ensure that the Affiliated B&N
Site complies at all times with the standards set forth in
Exhibit C. To the extent site standards are not established in
Exhibit C with respect to any aspect or portion of the
Affiliated B&N Site (or the Products or other Content
contained therein), B&N will provide such aspect or portion at
a level of accuracy, quality, completeness, and timeliness
which substantially meets or exceeds prevailing standards in
the online book retailing industry. The sale by B&N of
electronically delivered Books through the Affiliated B&N Site
shall be subject to capacity and technical limitations, and
downloading fees and related expenses, reasonably imposed or
incurred by AOL.
2.10. Traffic Flow. Except as otherwise approved by AOL, B&N will
take commercially reasonable efforts to ensure that AOL
traffic is either kept within the Affiliated B&N Site or
channeled back into the AOL Service (with the exception of
advertising links sold and implemented pursuant to the
Agreement). The Parties will work together on implementing
mutually acceptable links back from the Affiliated B&N Site to
the AOL Service.
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2.11. Marketing to AOL Purchasers. To the extent B&N sends any form
of communications to persons who were reasonably ascertainable
by B&N to be AOL Purchasers, B&N will promote the Affiliated
B&N Site as the location at which to purchase Products (as
compared to any more general or other site or location).
3. AOL EXCLUSIVITY AND RELATED OBLIGATIONS.
3.1. AOL Service. B&N will be the exclusive marketer of the
Exclusive Service within the AOL Service during the Initial
Term (the "AOL Service Exclusivity").
3.2. Greenhouse/DCI/International. B&N will be the exclusive
marketer of the Exclusive Service through the Greenhouse
Properties during the Initial Term. B&N will be the exclusive
National Book Retailer promoted by DCI through the DCI Areas
during the Initial Term (excluding brand advertising for
local, physical retail locations (other than locations
operated by a National Book Retailer) promoted through a
corresponding local DCI Area). Through the International
Services, B&N will be the exclusive American-based and
operated National Book Retailer promoted by the International
Services. Collectively, these restrictions are referred to
herein as the "Ancillary Exclusivities" (and, with the AOL
Service Exclusivity, the "Combined Exclusivities").
3.3. Third Party Limitations. To the extent a third party would be
affected by the foregoing exclusivity (a "Restricted Party")
and such party is not solely a provider of the Exclusive
Service (i.e., it is also engaged in activities other than
Book-selling), such exclusivity shall only apply to the
marketing of the Exclusive Service by such Restricted Party;
provided that the foregoing exception shall apply only after
Year 2 in the case of a National Book Retailer identified on
Exhibit F (including affiliates promoted in any way under the
same brand name marketing any of the Products referred to in
Section 2.1(i) ("Related Products")) (each an "Identified
National Book Retailer"), provided that the restrictions in
this Section 3.3 will not be violated if (i) AOL enters into
an agreement with respect to Related Products with any third
party not then an Identified National Book Retailer, (ii) such
third party thereafter becomes an Identified National Book
Retailer by way of merger, acquisition or otherwise, and (iii)
AOL was not aware of such contemplated transaction at the time
it entered into the Related Product agreement with such third
party. AOL shall not online, through the AOL Service, in any
respect (i) prior to the end of Year 2, promote, advertise,
market or distribute (including by way of direct links) any
Related Products of any Identified National Book Retailer, or
(ii) during the Initial Term, promote, advertise, market or
distribute (including by way of direct links) the Book
products of any Identified National Book Retailer. In
addition, AOL shall use commercially reasonable efforts, in
entering into agreements after the date of execution of this
Agreement with any of the then five most significant partners
in each of the commerce, "anchor tenant" and information
provider categories (each a "Significant Agreement") to
restrict the ability of such parties to online promote,
advertise (excluding banner or similar advertising), market or
distribute (including by way of direct links) the products of,
any Identified National Book Retailer through such partner's
online area appearing (a) on the AOL Service or (b) through
its affiliated site linked directly to the AOL Service, as the
case may be. To the extent AOL enters into any Significant
Agreement which does not contain the foregoing restriction,
then the restrictions imposed
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on B&N pursuant to Section 2.1 of this Agreement shall be
deemed modified to be only as restrictive on a comparable
basis (e.g. as to the number of restricted screen levels) as
the restrictions actually imposed by AOL on the other party to
such Significant Agreement. AOL shall notify B&N promptly of
its entering into any Significant Agreement which would
require the modification to Section 2.1 described in the
previous sentence.
3.4. Exceptions. Notwithstanding anything to the contrary in this
Section, no provision of this Agreement will limit
relationships between AOL and/or the Additional Parties and
any third parties, relating to: (i) the promotion, advertising
or sale (collectively, "Promotion") of Books through an
auction or club format by or for any entity other than an
Identified National Book Retailer; (ii) the Promotion of
"audio books"/"books on tape" by or for any entity other than
an Identified National Book Retailer; (iii) the Promotion of
Books by or for any entity other than an Identified National
Book Retailer for whom such sales do not constitute at least
10% of annual revenues; (iv) the Promotion of used Books other
than used college textbooks (subject to the exception
described below) by or for any entity other than an Identified
National Book Retailer; (v) publisher Content regarding or
promoting specific Books (other than Books generally)
published by such publisher, unless expressly promoting an
Identified National Book Retailer; (vi) brand advertising
solely promoting physical retail locations for any entity
other than an Identified National Book Retailer; and (vii) AOL
commitments existing prior to the Effective Date, of which the
only material commitment is the Agreement dated June 30, 1997
(the "CUC Agreement) between AOL and CUC International, Inc.
("CUC") which provides for the nonexclusive sale by CUC of
Books through a club format and through CUC's "NetMarket"
online department store; provided that the restrictions in
this Section 3.4 related to Identified National Book Retailers
will not be violated if (x) AOL enters into an agreement with
any third party not then an Identified National Book Retailer
which, if such party were an Identified National Book
Retailer, would not be permitted under this Section 3.4, (y)
such third party thereafter becomes an Identified National
Book Retailer by way of merger, acquisition or otherwise, and
(z) AOL was not aware of such contemplated transaction at the
time it entered into the agreement with such third party. One
year from the time B&N reasonably demonstrates to AOL that B&N
is one of the top three sellers of used Books with respect to
gross sales revenue and scope of offering, the AOL Service
Exclusivity will be deemed to also cover third parties
marketing a competitive offering of used Books. B&N
acknowledges that, notwithstanding this Section 3.4, the CUC
Agreement shall not be deemed a violation of any of the
Combined Exclusivities.
3.5. Additional Provisions Regarding Greenhouse Properties, DCI
Areas and International Services. AOL shall acquire from GHN,
DCI and the International Services for the benefit of B&N,
without payment of any consideration in addition to the
amounts payable by B&N under Sections 4.1 and 4.2, the rights
and commitments set forth in this Agreement relating to such
entities. In the event that the sale, transfer or other
disposition to an unaffiliated third party of any of the
Greenhouse Properties results in a material decrease in the
Impressions being delivered through the Greenhouse Properties,
AOL shall deliver or cause to be delivered to B&N comparable
substitute Impressions through replacement properties. In
addition, AOL shall use commercially reasonable efforts to
obtain distribution for the Affiliated B&N Site through any
future non-U.S. versions of the AOL Service, and B&N
acknowledges that it may be required to pay
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additional compensation in connection therewith. In the event
such additional amounts would be payable by B&N, B&N shall be
entitled to elect to forego adding such additional
international service to the International Services.
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4. PAYMENTS.
4.1. Guaranteed Payments. B&N will pay AOL a guaranteed amount of
$40 million as follows: (a) $2.5 million upon the execution of
this Agreement, $3.5 million by February 1, 1998 and $1
million by each of May 1, 1998 and September 1, 1998; (b) $2.5
million by each of January 1, 1999, April 1, 1999, July 1,
1999 and October 1, 1999; and (c) $2.75 million by each of
February 1, 2000, May 1, 2000, August 1, 2000, November 1,
2000, February 1, 2001, May 1, 2001, August 1, 2001 and
November 1, 2001.
4.2. Sharing of Site Revenues. In (i) the period in any Year
following the point at which Site Revenues exceed * * * (in
the case of Year 1), * * * (in the case of Year 2), * * * (in
the case of Year 3) and * * * (in the case of Year 4), (ii)
any period following the point at which Site Revenues exceed *
* * in the aggregate and (iii) any Renewal Term, B&N shall pay
to AOL with respect to Site Revenues after such point: (a) * *
* of Advertising Revenues; plus (b) * * * of Transaction
Revenues with respect to each Product other than Software
Products; plus (c) if in Year 1 or Year 2, * * * of
Transaction Revenues with respect to each Software Product;
plus (d) if in Year 3 or Year 4, * * * of Transaction Revenues
with respect to each Software Product. In the case of
Transaction Revenues arising from and traceable to a third
party area on the AOL Service ("Affiliate Sales"), Transaction
Revenues shall be net of the actual commission paid by B&N to
the entity controlling such third party area; provided that,
in no event shall the payment to AOL with respect to Affiliate
Sales be less than * * * of Transaction Revenues. In the case
of any Transaction Revenues arising through the International
Services in excess of * * * in any Year, B&N shall pay to AOL
* * * of Transaction Revenues arising during the remainder of
such Year; provided that such incremental Transaction Revenues
shall not count towards the aggregated revenue thresholds
listed above in this Section 4.2.
4.3. Alternative Revenue Streams. In the event B&N or its
Affiliates receives or desires to receive, directly or
indirectly, any compensation in connection with the Affiliated
B&N Site other than Site Revenues described herein (an
"Alternative Revenue Stream"), B&N will promptly inform AOL in
writing, and the Parties will negotiate in good faith
regarding whether B&N will be allowed to market Products
producing such Alternative Revenue Stream to AOL Members
through the Affiliated B&N Site, and if so, the equitable
portion of such Alternative Revenue Stream (if applicable)
that will be shared with AOL.
4.4. Wired Payments; Late Payments. All payments required under
this Section 4 will be paid in immediately available,
non-refundable funds wired to AOL's account. All amounts owed
hereunder not paid within fifteen (15) days following the date
such amounts are due and payable will bear interest from such
fifteenth day at the prime rate in effect at such time.
4.5. Auditing Rights. Each Party shall maintain complete, clear and
accurate records of all expenses, revenues, fees and other
transactions in connection with the performance of this
Agreement. For the sole purpose of ensuring compliance with
this Agreement, each Party shall have the right, at its
expense and not more than once every twelve (12) months, to
direct an independent certified public accounting firm to
conduct a reasonable and necessary inspection of portions of
the books and records of the other Party which
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
are relevant to such other Party's performance pursuant to
this Agreement. Any such audit may be conducted after twenty
(20) business days prior written notice.
4.6. Taxes. B&N shall collect and pay and indemnify and hold AOL
harmless from, any sales, use, excise, import or export value
added or similar tax or duty not based on AOL's net income,
including any penalties and interest, as well as any costs
associated with the collection or withholding thereof,
including attorneys' fees.
4.7. Reports.
4.7.1. Sales Reports. B&N will provide AOL in an automated
manner with a monthly report in a mutually agreed
format, detailing the following activity in such
period (and any other information mutually agreed
upon by the Parties or reasonably required for
measuring revenue activity by B&N through the
Affiliated B&N Site, if available): summary sales
information by day (date, number of Products, number
of orders, and total Transaction Revenues). If
commercially feasible, B&N will report Transaction
Revenues by AOL Network area and by Product
categories. More generally, each payment to be made
pursuant to this Section 4 shall be accompanied by a
report containing information which supports the
payment, including information identifying (i)
Transaction Revenues and all items deducted or
excluded to produce Transaction Revenues, including,
without limitation, chargebacks and credits for
returned or cancelled goods or services (and, where
possible, an explanation of the type of reason
therefor, e.g., bad credit card information, poor
customer service, etc.) and (ii) any applicable
Advertising Revenues.
4.7.2. Fraudulent Transactions. To the extent permitted by
applicable laws, B&N will provide AOL with a prompt
report of any fraudulent order, including the date,
screenname and amount associated with such order,
following B&N obtaining knowledge that the order is,
in fact, fraudulent.
5. TERM; RENEWAL; TERMINATION.
5.1. Term. Unless earlier terminated as set forth herein, the
initial term of this Agreement will be for sixteen Quarters
(the "Initial Term").
5.2. Renewal. Upon conclusion of the Initial Term, AOL will have
the right to renew this Agreement for up to five (5)
successive one-year renewal terms (each a "Renewal Term" and
together with the Initial Term, the "Term") with respect to
the AOL Service or the AOL Service and the other AOL Network
areas or portions thereof, by providing B&N with notice of
AOL's intention to renew the Agreement for a subsequent
Renewal Term no later than one hundred twenty (120) days prior
to the commencement of such Renewal Term. During any Renewal
Term: (i) B&N will not be required to pay any guaranteed,
fixed payment (subject to the applicable revenue sharing
provisions of Section 4.2) or perform the cross-promotional
obligations specified in Section 1.4; and (ii) AOL will not be
required to undertake any fixed exclusivity or
promotional/placement obligations; provided that (iii) for so
long as AOL may elect to maintain the AOL Service Exclusivity
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
commitments contained herein during a Renewal Term, B&N will
continue to perform its cross-promotional and marketing
obligations.
5.3. Termination for Breach. Either Party may terminate this
Agreement at any time in the event of a material breach of the
Agreement by the other Party which remains uncured after
thirty (30) days written notice thereof to the other Party (or
such shorter period as may be specified elsewhere in this
Agreement); provided that AOL will not be required to provide
notice to B&N in connection with B&N's failure to make any
payment to AOL required hereunder and the cure period with
respect to any scheduled payment shall be fifteen (15) days
from the date for such payment provided for herein.
5.4. Termination for Bankruptcy/Insolvency. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared
insolvent or bankrupt, (iii) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary or
involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
5.5. Termination on Change of Control. In the event of a Change of
Control of B&N resulting in control of B&N by an Interactive
Service, AOL may terminate this Agreement by providing thirty
(30) days prior written notice to B&N of such intent to
terminate. In the event of a Change of Control of AOL
resulting in control of AOL by a National Book Retailer, B&N
may terminate this Agreement by providing thirty (30) days
prior written notice to AOL of such intent to terminate.
5.6. Termination for Impressions Shortfall. If, as of the end of
any Year, the Shortfall with respect to such Year is greater
than * * * of the Annual Minimum for such Year, B&N may
terminate this Agreement by providing thirty (30) days prior
written notice to AOL of such intent to terminate, such notice
to be given within forty-five (45) days after the end of such
Year and to be effective as of the end of the first Quarter
immediately following such Year.
6. MANAGEMENT COMMITTEE/ARBITRATION. If the Parties are unable to resolve
any dispute, controversy or claim arising under this Agreement
(excluding any disputes relating to intellectual property rights or
confidentiality) (each a "Dispute"), such Dispute shall be submitted to
the Management Committee for resolution. If the Management Committee is
unable to resolve the Dispute within ten (10) business days after
submission to them, the Dispute shall be solely and finally settled by
expedited arbitration in New York, New York under the auspices of the
American Arbitration Association; provided that the Federal Rules of
Evidence shall apply in toto to any such Dispute and, subject to the
arbitrators' discretion to limit the time for and scope of discovery,
the Federal Rules of Civil Procedure shall apply with respect to
discovery; and provided further that, consistent with the parties'
desire to avoid waste of time and unnecessary expense, any Dispute
arising from any provision of the Agreement which expressly or
implicitly provides for the parties to reach mutual agreement as to
certain terms therein shall not be submitted to arbitration but shall
be resolved in good faith by the Management Committee. The arbitrator
may enter a default decision against any Party who fails to participate
in the arbitration proceedings. For purposes herein, the "Management
Committee" shall mean a committee made
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
-12-
up of one (1) 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. Any
judgment by the arbitrator may be enforced in any court of competent
jurisdiction. The arbitrator may not amend the provisions of the
Agreement without the written agreement of the Parties.
7. BROADBAND DISTRIBUTION. To the extent that the AOL Service is delivered
through a broadband distribution modem (e.g., cable modem): (i) B&N
will, at its expense, make adjustments to the design, operations and
structure of the Affiliated B&N Site necessary to provide a competitive
user experience through such distribution; (ii) the Parties shall
negotiate in good faith regarding adjustments to the terms herein in
the event such distribution involves a material change to a Party's
cost and revenue structures under its current distribution channels;
and (iii) in the event that AOL's marketing of the Affiliated B&N Site
as provided for herein would otherwise preclude AOL from distributing
the AOL Service through a third party distributor, then the Parties
shall negotiate in good faith regarding a mutually acceptable framework
designed to permit such distribution of the AOL Service.
8. STANDARD TERMS. The Standard Online Commerce Terms & Conditions set
forth on Exhibit D attached hereto and Standard Legal Terms &
Conditions set forth on Exhibit E attached hereto are each hereby made
a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. XXXXXXXXXXXXXX.XXX INC.
By: By:
--------------------------- ---------------------------
Print Name: Print Name:
------------------- -------------------
Title: Title:
------------------------ -----------------------
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
EXHIBIT A
Definitions
The following definitions will apply to this Agreement:
Additional B&N Channel. Any other online distribution channel through which B&N
makes available an offering comparable in nature to the Affiliated B&N Site.
Advertising Revenues. The combination of AOL Advertising Revenues and Internet
Advertising Revenues:
AOL Advertising Revenues. Aggregate amounts collected plus the fair
market value of any other compensation received (such as barter
advertising, but excluding coop advertising (which includes advertising
of B&N and B&N Products by members of B&N's "Affiliates Program", and
third party Content permitted under Section 2.1) by B&N or its agents,
as the case may be, arising from the license or sale of advertisements,
promotions, links or sponsorships ("Advertisements") to appear within
any pages of the Affiliated B&N Site which may be exclusively available
to AOL Members ("AOL-based Advertisements"), less applicable
Advertising Sales Commissions.
Internet Advertising Revenues. For each Advertisement on a page of the
Affiliated B&N Site which is not exclusively available to AOL Members,
the product of: (a) the amount collected plus the fair market value of
any other compensation received (such as barter advertising, but
excluding coop advertising (which includes advertising of B&N and B&N
Products by members of B&N's "Affiliates Program", and third party
Content permitted under Section 2.1) by B&N or its agents arising from
the license or sale of such Advertisement attributable to a given
period of time, less applicable Advertising Sales Commissions, and (b)
the quotient of (i) Impressions on the page containing such
Advertisement by AOL Members for such period of time divided by (ii)
total Impressions on the page containing such Advertisement by all
users for such period of time (the "Internet Advertising Quotient") (or
such other percentage or formula as is mutually agreed upon in writing
by the Parties). B&N will be responsible for calculating the Internet
Advertising Quotient related to Internet Advertising Revenues.
Advertising Sales Commission. (i) Actual amounts paid as commission to third
party agencies in connection with sale of the Advertisement or (ii) 15% in the
event the Party has sold the Advertisement directly and will not be deducting
any third party agency commissions.
Affiliated B&N Site. The specific area in the AOL Service to be promoted and
distributed by AOL hereunder through which B&N can market and complete
transactions regarding its Products.
AOL Look and Feel. The elements of graphics, design, organization, presentation,
layout, user interface, navigation and stylistic convention (including the
digital implementations thereof) which are generally associated with Interactive
Sites within the AOL Service or XXX.xxx.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
AOL Member. Any authorized user of the AOL Network, including any sub-accounts
using the AOL Network under an authorized master account.
AOL Network. (i) The AOL Service and (ii) 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 Promotions.
AOL Purchaser. Any person or entity who enters the Affiliated B&N Site 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 which includes a domain other than an "XXX.xxx" domain); provided
that any person or entity reasonably traceable as an AOL Purchaser at the time
of a subsequent purchase who has previously satisfied the definition of AOL
Purchaser will remain an AOL Purchaser, and such subsequent purchase by such
person or entity through a B&N Interactive Site will also give rise to
Transaction Revenues hereunder (and will not be conditioned on the person or
entity's satisfaction of the first clause of this definition set forth above).
AOL Service. The U.S. version of the proprietary America Online(Registered)
brand service, specifically excluding (a) XXX.xxx or any other AOL Interactive
Site, (b) any international versions of the AOL Service (e.g., the International
Services), (c) "Driveway," "AOL NetFind," "AOL Instant Messenger" or any
similar, separate subproduct which may be available through the U.S. version of
the America Online(Registered) brand service, (d) DCI Areas, Greenhouse
Properties or any similar "sub-service" offered by or through the U.S. version
of the America Online(Registered) brand service, (e) classifieds, yellow pages,
search and directory resources or similar directory products, (f) any other
programming or content area offered by or through the U.S. version of the
America Online(Registered) brand service over which AOL does not exercise
operational control, and (g) any third party information provider areas or
brands which may be acquired by AOL subsequent to the Effective Date
(collectively, the "Excluded Areas"), but specifically including any successor
or subsequently created affiliated service designed to, or which effectively
does, replace or displace or result in a migration of a majority of AOL Members
from, the U.S. version of the proprietary America Online(Registered) brand
service.
Books. New, paper-based, retail books, and electronically delivered versions of
such books (provided such books have ISBN numbers and are enhanced only as to
navigation as such term is currently understood), and new and used college
textbooks (in each case for so long as B&N actively markets such Product
category).
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 other than to an entity controlled by, controlling or under common
control with, such Party; or (b) the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1933, as amended) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under such Act) of more than 50% of either (i) the then
outstanding shares of common stock of such Party; or (ii) the combined voting
power of the then outstanding voting securities of such Party entitled to vote
generally in the election of directors.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Confidential Information. Any information relating to or disclosed in the course
of the Agreement, which is or should be reasonably understood to be confidential
or proprietary to the disclosing Party, including, but not limited to, the
material terms of this Agreement, information about AOL Members and B&N
customers, technical processes and formulas, source codes, product designs,
sales, cost and other unpublished financial information, product and business
plans, projections, and marketing data. "Confidential Information" will not
include information (a) already lawfully known to or independently developed by
the receiving Party, (b) disclosed in published materials, (c) generally known
to the public, (d) lawfully obtained from any third party, or (e) information
required to be disclosed by law.
Content. Information, materials, features, Products, advertisements, promotions,
links, pointers and software, including any modifications, upgrades, updates,
enhancements and related documentation.
DCI Areas. The comprehensive, local, interactive programming areas created by
Digital Cities, Inc. ("DCI") and distributed under the DCI brand through
AOL-based content forms on the AOL Service (excluding the applicable Excluded
Areas).
Exclusive Service. The marketing of Books online to consumers on a retail basis.
Greenhouse Properties. Subject to Section 3.5 of the Agreement, the following
interactive content properties majority-owned by Greenhouse Networks, Inc.
("GHN") and distributed under a "Greenhouse"-affiliated brand through AOL-based
content forms on the AOL Service (excluding the applicable Excluded Areas):
Entertainment Asylum, Electra, Love@AOL, Santa's Homepage, and Extreme Fans.
Impressions. User exposure to the page containing the applicable Promotion, as
such exposure may be reasonably determined and measured by AOL in accordance
with its standard methodologies and protocols.
Interactive Service. Any entity or division that as its primary business offers
online or Internet connectivity (or any successor form of connectivity),
aggregates and/or distributes a broad selection of third-party interactive
Content, or provides interactive navigational services (including, without
limitation, any online service providers, Internet service providers, @Home or
other broadband providers, search or directory providers, "push" product
providers such as the Pointcast Network or providers of interactive navigational
environments such as Microsoft's "Active Desktop").
Interactive Site. Any interactive site or area (other than the Affiliated B&N
Site or the AOL Network) which is managed, maintained, owned or controlled by a
Party or its agents, including, by way of example and without limitation, (i) a
Party's 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."
International Services. The versions of the AOL Service currently marketed in
the United Kingdom, France, Japan, Australia and Canada under the AOL brand by
affiliates of AOL, and any future non-U.S. online Internet services marketed
under the AOL brand by AOL or any of its affiliates added pursuant to Section
3.5 of the Agreement, in each case excluding the applicable Excluded Areas.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Level A. Inventory within the AOL Network that would, in both Parties'
reasonable judgment, fall within the top third of advertising inventory, based
on (the "Measurement Criteria") (i) the "cpm" for such inventory published on
AOL's then-current advertising Rate Card (or, for promotional inventory which
does not have a published "cpm," an assumed "cpm" reasonably determined based on
the comparability of such inventory to inventory with published "cpm's" in AOL's
then-current advertising Rate Card), (ii) the monthly average "sellthrough" over
the prior three month period (or shorter period of availability) for such
inventory, and (iii) effectiveness with respect to bookselling. Current examples
include the following AOL Service areas: Shopping, Personal Finance, News,
Influence, and Computers.
Level B. Inventory within the AOL Network that would, in both Parties'
reasonable judgment, fall within the middle third of advertising inventory,
based on the Measurement Criteria. Current examples include the following AOL
Service areas: Greenhouse, Digital Cities, International, Secondary Channels and
Advertising.
Level C. Inventory within the AOL Network that would, in both Parties'
reasonable judgment, fall within the lowest third of advertising inventory,
based on the Measurement Criteria. Current examples include the following AOL
Service areas: People Connection, Love@AOL and Find/Search.
Licensed Content. All Content offered through the Affiliated B&N Site pursuant
to this Agreement, including any modifications, upgrades, updates, enhancements,
and related documentation.
National Book Retailer. The entities listed on Exhibit F, together with any
future third party entities that have book-retailing operations comparable in
scope and nature to, and materially competitive with, B&N.
Site Revenues. The combination of Transaction Revenues and Advertising Revenues.
Product. Any product, good or service which B&N offers, sells or licenses to AOL
Purchasers through (i) the Affiliated B&N Site (including through any
Interactive Site linked thereto) or (ii) an "offline" means (e.g., toll-free
number) for receiving orders related to specific offers within the Affiliated
B&N Site requiring purchasers to reference a specific promotional identifier or
tracking code.
Quarter. Beginning with the Effective Date, (i) for Year 1, the first two
three-month periods followed by two four-month periods, (ii) for Year 2, the
first three three-month periods followed by one four-month period, and (iii) for
each of Year 3 and Year 4, four three-month periods. For example, in Year 1, the
Quarters would be November 1, 1997 - January 31, 1998, February 1, 1998 - April
30, 1998, May 1, 1998 - August 30, 1998 and September 1, 1998 - December 31,
1998.
Transaction Revenues. Aggregate amounts paid by AOL Purchasers to B&N or its
agents in connection with the sale, licensing, distribution or provision of any
Products, excluding, in each case, (a) handling, shipping, and service charges,
(b) amounts collected for sales or use taxes or duties, and (c) credits and
chargebacks for returned or cancelled goods or services, but not excluding cost
of goods sold or any similar cost.
Year. The first four Quarters in the case of Year 1, the second four Quarters in
the case of Year 2, the third four Quarters in the case of Year 3 and the fourth
four Quarters in the case of Year 4.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
EXHIBIT B
B&N Cross-Promotion
Online
In each B&N Interactive Site (excluding those devoted to providing information
about physical Xxxxxx & Xxxxx store locations), B&N will include on its homepage
a "Try AOL" feature through which users can obtain promotional information about
AOL products and services and, at AOL's option, download or order AOL's
then-current version of client software for the AOL Service or software for any
other AOL products or services (e.g., AOL's Instant Messenger service).1
Offline
In instances when B&N makes promotional reference to its Interactive Sites
(e.g., in television, radio and print advertisements), B&N will include a
specific reference (verbally where possible) of the Affiliated B&N Site's
availability through America Online(Registered) which is at least equal in
prominence to references for any other B&N Interactive Site. Any listings of the
URL(s) for B&N Interactive Sites by B&N will include a listing of the AOL
"keyword" for the Affiliated B&N Site of at least equal prominence to the URL
reference.
--------
1 AOL will pay B&N a standard bounty for each person who registers for the AOL
Network using B&N's special identifier for this promotion and subsequently pays
AOL monthly usage fees across at least two (2) billing cycles for the use of the
AOL Network. Note that if this promotion is delivered through Microsoft's Active
Desktop or any other "push" product (an "Operating System"), such feature will
link users directly to AOL software within the Operating System or direct users
without Internet access to an AOL application setup program within the Operating
System (all subject to any standard policies of the Operating System).
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
EXHIBIT C
Operating Standards
General. Subject to limitations imposed by AOL pursuant to the Agreement (such
as limiting the offering of non-Book Products or third party Content under
Section 2.1), the Affiliated B&N Site (including the Products and other Content
contained therein) will generally be in the top three (3) in the online book
retailing industry with respect to all material, published performance and
quality averages or standards. In that regard, the (i) pricing of Products, (ii)
scope and selection of Products, (iii) quality of Products, (iv) customer
service and fulfillment associated with the marketing and sale of Products, (v)
design/graphical user interface and ease-ofuse of the Affiliated B&N Site and
(vi) functionality associated with the Affiliated B&N Site, will, with respect
to each measure, be competitive in all material respects with that which is
offered by any National Book Retailer. AOL reserves the right to conduct focus
group testing to assess the competitiveness of the design, ease-of-use and
functionality of the Affiliated B&N Site.
Hosting; Capacity. B&N will provide all computer servers, routers, switches and
associated hardware in an amount reasonably necessary to meet anticipated
traffic demands, adequate power supply (including generator back-up) and XXXXXX,
adequate insurance, adequate service contracts and all necessary equipment
racks, floor space, network cabling, and power distribution to support the
Affiliated B&N Site (collectively, "Hosting Infrastructure"). In the event B&N
fails to satisfy this requirement, AOL will have the right (in addition to any
other remedies available to AOL hereunder) to regulate the promotions it
provides to B&N hereunder to the extent necessary to minimize user delays until
such time as B&N corrects its infrastructure deficiencies.
Speed; Accessibility. B&N will ensure that the performance and availability of
the Affiliated B&N Site: (a) is monitored on a continuous, 24/7 basis and (b)
remains competitive in all material respects with the performance and
availability of other similar sites based on similar form technology. B&N will
use commercially reasonable efforts to ensure that: (a) the functionality and
features within the Affiliated B&N Site are optimized for the AOL client
software then in use by AOL Members; and (b) the Affiliated B&N Site is designed
and populated in a manner that minimizes delays when AOL Members attempt to
access such site.
Service Level Response. B&N agrees to use commercially reasonable efforts to
provide the following service levels in response to problems with or
improvements to the Affiliated B&N Site.
1. For material functions of software that are or have become entirely or
substantially inoperable, B&N will provide a bug fix or workaround
within two business days after the first report of such error.
2. For functions of the software that are impaired or that otherwise fail
to operate in accordance with agreed upon specifications, B&N will
provide a bug fix or workaround within three business days after the
first report of such error.
3. For errors disabling only certain non-essential functions, B&N will
provide a bug fix or workaround within sixty days after the first
report of such error.
4. For all other errors, B&N will address these requests on a case-by-case
basis as soon as reasonably feasible.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Monitoring. AOL Network Operations Center (NOC) will work with a B&N-designated
technical contact in the event of any performance malfunction or other emergency
related to the Affiliated B&N Site and will either assist or work in parallel
with B&N's contact using B&N tools and procedures, as applicable. The Parties
will develop a process to monitor performance and member behavior with respect
to access, capacity, security and related issues both during normal operations
and during special promotions/events. The Parties will also enter into a Service
Level Agreement with AOL on customary terms and conditions which will provide
B&N with
(a) technical due diligence, and supplemental quarterly review, of the
Affiliated B&N Site, and (b) a primary AOL technical contact.
Telecommunications. The Parties agree to explore encryption methodology to
secure data communications between the Parties' data centers. The network
between the Parties will be configured such that no single component failure
will significantly impact AOL Members. The network will be sized such that no
single line runs at more than 70% average utilization for a five-minute peak in
a daily period.
Security Review. B&N and AOL will work together to perform an initial security
review of, and to perform tests of, the B&N system, network, and service
security in order to evaluate the security risks and provide recommendations to
B&N, including periodic follow-up reviews as reasonably required by B&N or AOL.
B&N will use commercially reasonable best efforts to fix any security risks or
breaches of security as may be identified by AOL's Operations Security. Specific
services to be performed on behalf of B&N by AOL's Operations Security team will
be as determined by AOL in its sole discretion. The Affiliated B&N Site will use
Internet Industry Standard encryption for private member information (i.e.
40-bit SSL encryption).
Technical Performance. B&N will perform the following technical obligations (and
any reasonable updates thereto from time to time by AOL):
1. B&N will design the Affiliated B&N Site to support the Windows versions
of the Microsoft Internet Explorer 4.0, 3.02 (32-bit) and 3.01 (16-bit)
browsers, and make commercially reasonable efforts to support all other
AOL browsers listed at: xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxXxxxx.xxxx.
2. B&N will configure the server from which it serves the site to examine
the HTTP User-Agent field in order to identify the AOL Member-Agents
listed at: xxxx://xxxxxxxxx.xxxx.xxx.xxx/Xxxx0Xxxx.xxxx (the "AOL
Member-Agents").
3. B&N will design its site to support HTTP 1.0 or later protocol as
defined in RFC 1945 (available at
xxxx://xx.xxxxxxxx.xxx/xxx/xxx0000.xxxx) and to adhere to AOL's
parameters for refreshing cached information listed at
xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxxXxxx.xxxx.
4. B&N will provide continuous navigational ability for AOL Members to
return to a mutually agreed-upon point on the AOL Network from the
Affiliated B&N Site.
5. B&N will use commercially reasonable efforts to ensure that the
majority of the Affiliated B&N Site (in particular its graphics) is
designed to conform with the AOL proxy and caching system.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
EXHIBIT D
Standard Online Commerce Terms & Conditions
1. AOL Network Distribution. Except for members of B&N's "Affiliates Program,"
B&N will not authorize or permit any third party to distribute or promote the
Affiliated B&N Site through the AOL Network absent AOL's prior written approval.
Nothing in this Section 1 is intended to modify any agreement between AOL and
any member of B&N's "Affiliates Program."
2. Provision of Other Content. In the event that AOL notifies B&N that (i) as
reasonably determined by AOL, any Content within the Affiliated B&N Site
violates AOL's then-standard Terms of Service (as set forth on the America
Online(Registered) brand service), the terms of this Agreement or any other
standard, written AOL policy or (ii) AOL reasonably objects to the inclusion of
any Content within the Affiliated B&N Site (other than any specific items of
Content which may be expressly identified in this Agreement), then B&N shall
take commercially reasonable steps to block access by AOL Members to such
Content using B&N's then-available technology. In the event that B&N cannot,
through its commercially reasonable efforts, block access by AOL Members to the
Content in question, then B&N shall provide AOL prompt written notice of such
fact. AOL may then, at its option, restrict access from the AOL Network to the
Content in question using technology available to AOL. B&N will cooperate with
AOL's reasonable requests to the extent AOL elects to implement any such access
restrictions.
3. Contests. B&N will take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted or promoted through the Affiliated
B&N Site (a "Contest") complies with all applicable federal, state and local
laws and regulations.
4. Navigational Icons. Subject to the prior consent of B&N, which consent will
not be unreasonably withheld with respect to links within the AOL Network, AOL
will be entitled to establish navigational icons, links and pointers connecting
the Affiliated B&N Site (or portions thereof) with other content areas on or
outside of the AOL Network.
5. Disclaimers. Upon AOL's request, B&N agrees to include within the Rainman
Screens a product disclaimer (the specific form and substance to be mutually
agreed upon by the Parties) indicating that transactions are solely between B&N
and AOL Members purchasing products from B&N.
6. AOL Look and Feel. B&N acknowledges and agrees that AOL will own all right,
title and interest in and to the elements of graphics, design, organization,
presentation, layout, user interface, navigation and stylistic convention
(including the digital implementations thereof) which are generally associated
with online areas contained within the AOL Network ("the AOL Look and Feel"),
subject to B&N's ownership rights in any B&N trademarks, copyrighted material or
other material in which B&N has a proprietary interest, within the Affiliated
B&N Site.
7. Management of the Affiliated B&N Site. B&N will manage, review, delete, edit,
create, update and otherwise manage all Products available on or through the
Affiliated B&N Site, in a timely and professional manner and in accordance with
the terms of this Agreement. B&N will use its best efforts to ensure that the
Affiliated B&N Site is current, accurate and well-organized at all times. B&N
warrants that the Affiliated B&N Site, including all Products and Contents
available therein: (i) will not infringe on or violate any
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
copyright, trademark, U.S. patent or any other third party right, including
without limitation, any music performance or other music-related rights; (ii)
will not violate AOL's then-applicable Terms of Service; and (iii) will not
contain any Product which violates any applicable law or regulation, including
those relating to contests, sweepstakes or similar promotions. AOL will have no
obligations with respect to the Products available on or through the Affiliated
B&N Site, including, but not limited to, any duty to review or monitor any such
Products.
8. Duty to Inform. B&N will promptly inform AOL of any information of which it
has knowledge related to the B&N Service or Affiliated B&N Site which could
reasonably lead to a claim, demand, or liability of or against AOL and/or its
affiliates by any third party.
9. Customer Service. It is the sole responsibility of B&N to provide customer
service to persons or entities purchasing Products through the AOL Network
("Customers"). B&N will bear full responsibility for all customer service,
including without limitation, order processing, billing, fulfillment, shipment,
collection and other customer service associated with any Products offered, sold
or licensed through the Affiliated B&N Site, and AOL will have no obligations
whatsoever with respect thereto. B&N will receive all emails from Customers via
a computer available to B&N's customer service staff and generally respond to
such emails within one business day of receipt. B&N will receive all orders
electronically and generally process all orders within one business day of
receipt, provided Products ordered are not advance order items. B&N will ensure
that all orders of Products are received, processed, fulfilled and delivered on
a timely and professional basis. B&N will offer AOL Members who purchase
Products through such Affiliated B&N Site a money back satisfaction guarantee.
B&N will bear all responsibility for compliance with federal, state and local
laws in the event that Products are out of stock or are no longer available at
the time an order is received. B&N will also comply with the requirements of any
federal, state or local consumer protection or disclosure law. Payment for
Products will be collected by B&N directly from customers. B&N's order
fulfillment operation will be subject to AOL's reasonable review.
10. Production Work. In the event that B&N requests AOL's production assistance
in connection with (i) ongoing programming and maintenance related to the
Affiliated B&N Site, (ii) a redesign of or addition to the Affiliated B&N Site
(e.g., a change to an existing screen format or construction of a new custom
form), (iii) production to modify work performed by a third party provider or
(iv) any other type of production work, B&N will work with AOL to develop a
detailed production plan for the requested production assistance (the
"Production Plan"). Following receipt of the Production Plan, AOL will notify
B&N of (i) AOL's availability to perform the requested production work, (ii) the
proposed fee or fee structure for the requested production and maintenance work
and (iii) the estimated development schedule for such work. To the extent the
Parties reach agreement regarding implementation of an agreed-upon Production
Plan, such agreement will be reflected in a separate work order signed by the
Parties. To the extent B&N elects to retain a third party provider to perform
any such production work, work produced by such third party provider must
generally conform to AOL's production Standards & Practices (a copy of which
will be supplied by AOL to B&N upon request). The specific production resources
which AOL allocates to any production work to be performed on behalf of B&N will
be as determined by AOL in its sole discretion.
11. Overhead Accounts. AOL will grant B&N a reasonable number of overhead
accounts on the AOL Network. B&N will be responsible for the actions taken under
or through its overhead accounts, which actions are subject to AOL's applicable
Terms of Service and for any surcharges, including, without limitation, all
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
premium charges, transaction charges, and any applicable communication
surcharges incurred by any overhead Account issued to B&N, but B&N will not be
liable for charges incurred by any overhead account relating to AOL's standard
monthly usage fees and standard hourly charges, which charges AOL will bear.
Upon the termination of this Agreement, all overhead accounts, related screen
names and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any overhead account.
12. Merchant Certification Program. If B&N elects to participate in any
generally applicable "Certified Merchant" program operated by AOL or its
authorized agents or contractors, B&N will need to, on an ongoing basis, meet
certain reasonable standards relating to provision of electronic commerce
through the AOL Network and B&N may also be required to pay certain reasonable
certification fees to the applicable entity operating the program.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
EXHIBIT E
Standard Legal Terms & Conditions
1. Promotional Materials/Press Releases. Each Party will submit to the other
Party, for its prior written approval, which will not be unreasonably withheld
or delayed, any marketing, advertising, press releases, and all other
promotional materials related to the Affiliated B&N Site and/or referencing the
other Party and/or its trade names, trademarks, logos and service marks (the
"Materials"); provided, however, that either Party's use of unaltered screen
shots of the Affiliated B&N Site for promotional purposes will not require the
approval of the other Party so long as the AOL Network is clearly identified as
the source of such screen shots. Each Party will solicit and reasonably consider
the views of the other Party in designing and implementing such Materials. Once
approved, the Materials may be used by a Party and its affiliates for the
purpose of promoting the Affiliated B&N Site and the content contained therein
and reused for such purpose until such approval is withdrawn with reasonable
prior notice. In the event such approval is withdrawn, reasonable quantities of
existing inventories of Materials may be depleted. Notwithstanding the
foregoing, either Party may issue press releases and other disclosures as
required by law or as reasonably advised by legal counsel without the consent of
the other Party and in such event, prompt notice thereof will be provided to the
other Party.
2. License. B&N hereby grants AOL a non-exclusive worldwide license to market,
license, distribute, reproduce, display, perform, transmit and promote the
Affiliated B&N Site and, for the benefit of the Affiliated B&N Site, the
Products contained therein (or any portion thereof) through such areas or
features of the AOL Network as AOL deems appropriate. AOL Members will have the
right to access and use the Affiliated B&N Site. Subject to the foregoing
license, B&N retains all right, title and interest in the Affiliated B&N Site
and the Contents thereof.
3. Trademark License. In designing and implementing the Materials and subject to
the other provisions contained herein, including without limitation Section 1
above, (a) B&N will be entitled to use the following trade names, trademarks,
and service marks of AOL (collectively, the "AOL Marks"): the "America
Online(Registered)" brand service, "AOL(Trademark)" service/software and AOL's
triangle logo; and AOL and its Affiliates will be entitled to use the "Xxxxxx &
Xxxxx(Registered)" trademark (the "B&N Xxxx, and together with the AOL Marks,
the "Marks"); provided that each Party: (i) does not create a unitary composite
xxxx involving a Xxxx of the other Party without the prior written approval of
such other Party; and (ii) displays symbols and notices clearly and sufficiently
indicating the trademark status and ownership of the other Party's Marks as
instructed by the other Party.
4. Ownership of Trademarks. Each Party acknowledges the ownership of the other
Party in the Marks of the other Party and agrees that all use of the other
Party's Marks will inure to the benefit, and be on behalf, of the other Party.
Each Party acknowledges that its utilization of the other Party's Marks will not
create in it, nor will it represent it has, any right, title, or interest in or
to such Marks other than the licenses expressly granted herein. Each Party
agrees not to do anything contesting or impairing the trademark rights of the
other Party.
5. Quality Standards. Each Party agrees that the nature and quality of its
products and services supplied in connection with the other Party's Marks will
conform to quality standards set by the other Party. Each Party agrees to supply
the
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
other Party, upon request, with a reasonable number of samples of any
Materials publicly disseminated by such Party which utilize the other Party's
Marks. Each Party will comply with all applicable laws, regulations, and customs
and obtain any required government approvals pertaining to use of the other
Party's marks.
6. Infringement Proceedings. Each Party agrees to promptly notify the other
Party of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party will have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party
with its reasonable cooperation and assistance with respect to any such
infringement proceedings.
7. Representations and Warranties. Each Party represents and warrants to the
other Party that: (i) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; and (iv) such Party
acknowledges that the other Party makes no representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in this Agreement. Each Party further represents and warrants to the other
Party that it is the sole and exclusive owner of the B&N Xxxx or the AOL Marks,
as the case may be, and/or has the right and power to license to the other Party
the B&N Xxxx or the AOL Marks, as the case may be, and such license does not and
will not (i) breach, conflict with or constitute a default under any agreement
or other instrument applicable to such Party or binding upon its assets or
properties or (ii) infringe upon any trademark, trade name, service xxxx,
copyright or other proprietary right of any other person or entity.
8. Confidentiality. Each Party acknowledges that Confidential Information may be
disclosed to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, at least substantially equivalent to
the steps it takes to protect its own proprietary information, during the term
of this Agreement, and for a period of five (5) years following expiration or
termination of this Agreement, to prevent the duplication or disclosure of
Confidential Information of the other Party, other than by or to its employees
or agents who must have access to such Confidential Information to perform such
Party's obligations hereunder. Notwithstanding the foregoing, either Party may
issue a press release or other disclosure containing Confidential Information
without the consent of the other Party, to the extent such disclosure is
required by law, rule, regulation or government or court order. In such event,
the disclosing Party will provide at least five (5) business days prior written
notice of such proposed disclosure to the other Party. Further, in the event
such disclosure is required of either Party under the laws, rules or regulations
of the Securities and Exchange Commission or any other applicable governing
body, such Party will (i) redact mutually agreed-upon portions of this Agreement
to the fullest extent permitted under applicable laws, rules and regulations and
(ii) submit a request to such governing body that such portions and other
provisions of this Agreement receive confidential treatment under the laws,
rules and regulations of the Securities and Exchange Commission or otherwise be
held in the strictest confidence to the fullest extent permitted under the laws,
rules or regulations of any other applicable governing body.
9. Limitation of Liability; Disclaimer; Indemnification.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
9.1. Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY
TO USE THE AOL NETWORK, THE AOL SERVICE, XXX.XXX OR THE AFFILIATED B&N SITE, OR
ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS ("COLLECTIVELY,
"DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER
PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE
SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9.3. EXCEPT AS PROVIDED IN
SECTION 9.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR MORE THAN
$40,000,000; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE
AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO SECTION 4.
9.2. No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK,
THE AOL SERVICE, XXX.XXX OR THE AFFILIATED B&N SITE, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY
WARRANTY REGARDING THE PROFITABILITY OF THE AFFILIATED B&N SITE.
9.3. Indemnity. Either Party will defend, indemnify, save and hold harmless the
other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims, demands, liabilities, costs or expenses, including reasonable attorneys'
fees ("Liabilities"), resulting from the indemnifying Party's material breach of
any duty, representation, or warranty of this Agreement, except where
Liabilities result from the gross negligence or knowing and willful misconduct
of the other Party.
9.4. Claims. Each Party agrees to (i) promptly notify the other Party in writing
of any indemnifiable claim and give the other Party the opportunity to defend or
negotiate a settlement of any such claim at such other Party's expense, and (ii)
cooperate fully with the other Party, at that other Party's expense, in
defending or settling such claim. AOL reserves the right, at its own expense, to
assume the exclusive defense and control of any matter otherwise subject to
indemnification by B&N hereunder, and in such event, B&N will have no further
obligation to provide indemnification for such matter hereunder.
9.5. Acknowledgment. AOL and B&N 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 9 will be
enforceable independent of and severable from any other enforceable or
unenforceable provision of this Agreement.
10. Solicitation of AOL Members. During the term of this Agreement, and for the
two-year
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
period following the expiration or termination of this Agreement, neither B&N
nor its agents will use the AOL Network to (i) solicit, or participate in the
solicitation of AOL Members when that solicitation is for the benefit of any
entity (including B&N) which could reasonably be construed to be or become in
competition with AOL or (ii) promote any services which could reasonably be
construed to be in competition with AOL including, but not limited to, services
available through the Internet. In addition, B&N may not send AOL Members e-mail
communications promoting B&N's Products through the AOL Network without a "Prior
Business Relationship." For purposes of this Agreement, a "Prior Business
Relationship" will mean that the AOL User has either (i) engaged in a
transaction with B&N through the AOL Network or (ii) voluntarily provided
information to B&N through a contest, registration, or other communication,
which included notice to the AOL User that the information provided by the AOL
User could result in an e-mail being sent to that AOL User by B&N or its agents.
A Prior Business Relationship does not exist by virtue of an AOL User's visit to
an Affiliated B&N Site (absent the elements above). More generally, B&N will be
subject to any standard policies regarding e-mail distribution through the AOL
Network which AOL may implement.
11. Collection of User Information. B&N is prohibited from collecting AOL Member
screennames from public or private areas of the AOL Network, except as
specifically provided below. B&N will ensure that any survey, questionnaire or
other means of collecting AOL Member screennames or AOL User email addresses,
names, addresses or other identifying information ("User Information"),
including, without limitation, requests directed to specific AOL Member
screennames and automated methods of collecting screennames (an "Information
Request") complies with (i) all applicable laws and regulations and (ii) any
privacy policies which have been issued by AOL in writing during the Term (the
"AOL Privacy Policies"). Each Information Request will clearly and conspicuously
specify to the AOL Members at issue the purpose for which User Information
collected through the Information Request will be used (the "Specified
Purpose").
12. Use of User Information. B&N will restrict use of the User Information
collected through an Information Request to the Specified Purpose. In no event
will B&N (i) provide User Information to any third party (except to the extent
specifically (a) permitted under the AOL Privacy Policies or (b) authorized by
the members in question), (ii) rent, sell or barter User Information, (iii)
identify, promote or otherwise disclose such User Information in a manner that
identifies AOL Members as end-users of the AOL Service, XXX.xxx or the AOL
Network or (iv) otherwise use any User Information in contravention of Section
10 above. Notwithstanding the foregoing, in the case of AOL Members who purchase
Products from B&N, B&N will be entitled to use User Information from such AOL
Members as part of B&N's aggregate list of Customers; provided that B&N's use
does not in any way identify, promote or otherwise disclose such User
Information in a manner that identifies AOL Members as end-users of the AOL
Service, XXX.xxx or the AOL Network. In addition, B&N will not use any User
Information for any purpose (including any Specified Purpose) not directly
related to the business purpose of the Affiliated B&N Site.
13. Excuse. Neither Party will be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
14. Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party will have
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
any right, power or authority to enter into any agreement for or on behalf of,
or incur any obligation or liability of, or to otherwise bind, the other Party.
This Agreement will not be interpreted or construed to create an association,
agency, joint venture or partnership between the Parties or to impose any
liability attributable to such a relationship upon either Party.
15. Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes on the delivery date if
delivered by electronic mail on the AOL Network or (i) on the delivery date if
delivered personally to the Party to whom the same is directed or by a
commercial overnight carrier, with written verification of receipt, or (ii) 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, (a) if to
AOL, to Xxxxx Xxxxxxx with a copy to Xxxx Xxxxxx, each at the address of AOL set
forth in the first paragraph of this Agreement, and (b) if to B&N, to Xxxx
Xxxxxxxxx at the address of AOL set forth in the first paragraph of this
Agreement, with a copy to Xxx Xxxxxx at Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx &
Xxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
16. No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement will not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same will be
and remain in full force and effect.
17. Return of Information. Upon the expiration or termination of this Agreement,
each Party will, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all confidential information,
documents, manuals and other confidential materials specified by the other
Party.
18. Survival. Sections 8 through 12 of this Exhibit will survive the completion,
expiration, termination or cancellation of this Agreement.
19. Entire Agreement. This Agreement sets forth the entire agreement and
supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein, including without limitation the Interactive
Marketing Agreement between the Parties dated as of January 24, 1997, except for
advertising ordered prior to the execution of the Agreement plus approximately
$44,000 of additional advertising to be ordered under Section 3.3 of the prior
agreement. Neither Party will be bound by, and each Party specifically objects
to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
20. Amendment. No change, amendment or modification of any provision of this
Agreement will be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
21. Further Assurances. Each Party will take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
22. Assignment. Neither Party will assign this Agreement or any right, interest
or benefit under this Agreement without the prior written consent of the other
Party, except to an entity controlled by, controlling or under common control
with, the assigning Party. Subject to the foregoing, this
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
Agreement will be fully binding upon, inure to the benefit of and be enforceable
by the Parties hereto and their respective successors and assigns.
23. Construction; Severability. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this Agreement, (i) such provision will be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law, and (ii) the remaining terms, provisions,
covenants and restrictions of this Agreement will remain in full force and
effect.
24. Remedies. Except where otherwise specified, the rights and remedies granted
to a Party under this Agreement are cumulative and in addition to, and not in
lieu of, any other rights or remedies which the Party may possess at law or in
equity; provided that, in connection with any dispute hereunder, B&N will be not
entitled to offset any disputed amounts that it claims to be due and payable
from AOL against amounts otherwise payable by B&N to AOL.
25. Applicable Law; Jurisdiction. This Agreement will be interpreted, construed
and enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws principles.
26. Export Controls. Both Parties will adhere to all applicable laws,
regulations and rules relating to the export of technical data and will not
export or re-export any technical data, any products received from the other
Party or the direct product of such technical data to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
27. Headings. The captions and headings used in this Agreement are inserted for
convenience only and will not affect the meaning or interpretation of this
Agreement.
28. Counterparts. This Agreement may be executed in counterparts, each of which
will be deemed an original and all of which together will constitute one and the
same document.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
EXHIBIT F
National Book Retailers
Borders
Waldenbooks
Crown Books
Books-a-Million
Xxxxxx.xxx
Xxxxx.xxx
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY xxxxxxxxxxxxxx.xxx inc.
EXHIBIT G
Carriage Plan and Promotion Examples
See attached items.
***Confidential portions of this document have been redacted and have been
separately filed with the Commission.
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