EXHIBIT 10.12
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
--------------------------------------------------------------------------------
AOL ADVERTISING INSERTION ORDER
-------------------------------
by and between
AMERICA ONLINE, INC.
and
XXXXXX.XXX INC.
Dated
December 16, 1998
--------------------------------------------------------------------------------
===============================
AOL ADVERTISING INSERTION ORDER [LOGO OF AMERICA ONLINE]
===============================
Contract #:
-------------------------------
AOL Salesperson:
--------------------------
Sales Coordinator: Credit Approval Received
------------------------
Date:
-------------------------------------
-----------------------------------------------------------------------------------------------
Advertiser Advertising Agency
-----------------------------------------------------------------------------------------------
Contact Person Xxxx Xxxxxx
-----------------------------------------------------------------------------------------------
Company Name Xxxxxx.xxx, Inc.
-----------------------------------------------------------------------------------------------
Address - Line 1 0000 00xx Xx., Xxxxx 000
-----------------------------------------------------------------------------------------------
Address - Line 2 Xxxxx Xxxxxx, XX 00000
-----------------------------------------------------------------------------------------------
Phone # 310-450-1444
-----------------------------------------------------------------------------------------------
Fax #
-----------------------------------------------------------------------------------------------
Email Xxxxxxx@xxxxxx.xxx
-----------------------------------------------------------------------------------------------
SIC Code
-----------------------------------------------------------------------------------------------
Advertiser IAB Category
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Billing Information
-----------------------------------------------------------------------------------------------
Send Invoices to (choose one): Advertiser [_] Agency
-----------------------------------------------------------------------------------------------
Advertiser or Agency Billing Same as above
Contact Person
-----------------------------------------------------------------------------------------------
Company Name
-----------------------------------------------------------------------------------------------
Billing Address - Line 1
-----------------------------------------------------------------------------------------------
Billing Address - Line 2
-----------------------------------------------------------------------------------------------
Billing Phone #
-----------------------------------------------------------------------------------------------
Billing Fax #
-----------------------------------------------------------------------------------------------
Billing Email Address
-----------------------------------------------------------------------------------------------
P.O. #, if applicable
-----------------------------------------------------------------------------------------------
1. Guaranteed Payments. Advertiser shall make the following payments to AOL:
a. [***];
---
b. [***];
---
c. [***]; and
---
d. [***]
---
2. Additional Payments. See Sections 3 and 8 of Exhibit A, and Section 9 of
Exhibit E attached hereto.
3. Late Payments; Wired Payments. All amounts owed hereunder not paid when due
-----------------------------
and payable will bear interest from the date such amounts are due and
payable at the prime rate in effect at such time. All payments required
hereunder will be paid in immediately available, non-refundable U.S. funds
wired to the "America Online" account, Account Number 323070752 at The Chase
Manhattan Bank, 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000 (ABA:
000000000). In the event of nonpayment on any of the dates specified above,
Advertiser shall have an additional five (5) business days within which to
make such payment and if Advertiser does not make the required payment in
such additional five (5) business days, AOL reserves the right to
immediately terminate this Insertion Order Agreement with written notice to
Advertiser.
--------------------------------------------------------------------------------
--------------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Inventory Type (choose one): [_] AOL Service only
[_] AOL Affiliate only (x.x.XXX.xxx) [_] AOL Service & AOL Affiliate
--------------------------------------------------------------------------------
1
---------------------------------------------------------------------------------------------------------------------------------
AOL Service
---------------------------------------------------------------------------------------------------------------------------------
Inventory
---------------------------------------------------------------------------------------------------------------------------------
Display
AOL Inventory/Demographic* Display Stop # of Ad Slots Total Gross Total
Purchased Start Date Date Ad Type Purchased Price Impressions
---------------------------------------------------------------------------------------------------------------------------------
PHASE I PROMOTIONS
---------------------------------------------------------------------------------------------------------------------------------
Run of E-mail: Zip Code Area 1 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
---------------------------------------------------------------------------------------------------------------------------------
Run of E-mail: Zip Code Area 2 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
---------------------------------------------------------------------------------------------------------------------------------
Run of E-mail: Zip Code Area 3 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
---------------------------------------------------------------------------------------------------------------------------------
Run of Service: Zip Code Area 1 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
---------------------------------------------------------------------------------------------------------------------------------
Run of Service: Zip Code Area 2 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
---------------------------------------------------------------------------------------------------------------------------------
Run of Service: Zip Code Area 3 [***] [***] Banner Rotation [***] [***]
--- --- --- ---
---------------------------------------------------------------------------------------------------------------------------------
Computing Download Software: Zip [***] [***] Banner Rotation [***] [***]
Code Targeted --- --- --- ---
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
PHASE II PROMOTIONS [***] [***]
See Exhibit B attached hereto --- ---
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
* Attach completed AOL Demographic Phase I [***] [***]
Profile Worksheet Promotions Total: --- ---
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Art
---------------------------------------------------------------------------------------------------------------------------------
All necessary artwork and active URL's must be provided by advertiser 3 business days prior to start date.
Artwork required from Advertiser/Agency:
----------------------------------------
[_] 234x60 IAB Standard /10k Max [_] 145x30 Old Standard /10k Max [_] 120x60 Shopping/10k Max
[_] 175x45 Chat/Mail in-box/10k Max [_] 197x40 PF Area/10k Max [_] Special
------------------
* Static banners only, no animation*
Linking URL: The HTTP/URL address to be connected to the Advertisement shall be:
xxxx://xxx.xxxxxx.xxx, or any other HTTP/URL agreed upon by Advertiser and AOL
(the "Affiliated Advertiser Site"). Advertiser shall be responsible for any
hosting or communication costs associated with the Affiliated Advertiser Site.
Please send artwork and URL to (choose one):
[_] XXXXXXXXXX@xxx.xxx [_] XXXXXXXXXX@xxx.xxx
------------------ ------------------
AOL reserves the right to immediately cancel any advertising flight in the event
of a material change to the nature or content of the site linked to the
Advertisement.
--------------------------------------------------------------------------------
----------------------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
2
------------------------------------------------------------------------------------------------------------------------------------
AOL Affiliate (e.g., XXX.xxx)
------------------------------------------------------------------------------------------------------------------------------------
Inventory
------------------------------------------------------------------------------------------------------------------------------------
AOL Affiliate
Inventory/Demographic* Display Start Display Stop # of Ad Slots Total
Purchased Date Date Ad Type Purchased Total Gross Price Impressions
------------------------------------------------------------------------------------------------------------------------------------
PHASE I PROMOTIONS
------------------------------------------------------------------------------------------------------------------------------------
Digital City -
Market Selection [***] [***] Banner Rotation [***] [***]
--- --- --- ---
------------------------------------------------------------------------------------------------------------------------------------
PHASE II PROMOTIONS [***] [***]
See Exhibit B attached hereto --- ---
------------------------------------------------------------------------------------------------------------------------------------
* See attached package description for ------------------------------------------------------
any XXX.xxx package purchases PHASE I [***] [***]
PROMOTIONS --- ---
TOTAL :
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Art
------------------------------------------------------------------------------------------------------------------------------------
All necessary artwork and active URL's must be provided by
advertiser 3 business days prior to start date.
Artwork required from Advertiser/Agency:
----------------------------------------
[_] 468x60 NF Reviews, Search Terms, My News & Hometown/10k Max/animation OK
[_] 100x70 XXX.xxx Home Page/3k Max/No animation [_] 234x60 NF Kids Only & Hometown/5k Max/animation OK
[_] 120x60 NF Home Page/2k Max/No animation [_] 120x60 Instant Messenger/7.5k Max/animation OK
[_] 120x60 Shopping/4k Max/No animation
Linking URL: The HTTP/URL address to be connected to the Advertisement shall be
the same address as that of the Advertiser Site.
Please send artwork and URL to (choose one):
[_] XXXXXXXXXX@xxx.xxx [_] XXXXXXXXXX@xxx.xxx
------------------ ------------------
AOL reserves the right to immediately cancel any advertising flight in the
event of a material change to the nature or content of the site
linked to the Advertisement.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Advertising Purchase Summary
--------------------------------------------------------------------------------
Total Price Total Impessions CPM
--------------------------------------------------------------------------------
AOL Networks [***] [***]
--- ---
--------------------------------------------------------------------------------
AOL Affiliate [***] [***]
--- ---
--------------------------------------------------------------------------------
Total Purchase Price [***] [***] [***]
--- --- ---
--------------------------------------------------------------------------------
(Less Agency Discount) N/A N/A
--------------------------------------------------------------------------------
-----------------------------------------------------
Net Purchase Price Total Impressions
-----------------------------------------------------
[***] [***]
--- ---
-----------------------------------------------------
The products and/or services to be offered or promoted by Advertiser in the
Advertisements are as follows: online postal services (i.e., services associated
with the online sale of postage stamps and ancillary products and services
related thereto) (the "Advertiser Products").
-------------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
3
4. Impressions Commitment. Any guarantees are to impressions (as measured by
----------------------
AOL in accordance with its standard methodologies and protocols), not
"click-throughs." In the event there is (or will be in AOL's reasonable
judgment) a shortfall in impressions as of the end of a display period (a
"Shortfall"), such Shortfall shall not be considered a breach of the
Agreement by AOL; instead, AOL will provide Advertiser, as its sole remedy,
with "makegood" impressions through advertisement placements on the AOL
Service. In connection with the foregoing, AOL shall use reasonable efforts
to ensure that any makegood impressions shall be provided to Advertiser
through promotions that are comparable in nature to the appropriate type of
promotions through which the impressions should have been delivered (e.g.,
if there is a Shortfall that should have been delivered through Level A
Promotions, AOL shall use reasonable efforts to make up such impressions
with other Level A Promotions). In the event that AOL is unable to provide
makegood impressions through the appropriate comparable promotions, AOL
shall provide such impressions through other types of promotions as follows:
[***] AOL reserves the right to alter Advertiser flight dates to accommodate
---
trafficking needs or other operational needs. In such cases, AOL will make
available to Advertiser reasonably equivalent flight(s).
5. Navigation. Advertiser shall provide continuous navigational ability for
-----------
AOL users to return to an agreed-upon point on the AOL Service (for which
AOL shall supply the proper address) from the Affiliated Advertiser Site
(e.g., the point on the AOL Service from which the Affiliated Advertiser
Site is linked).
6. Term. Unless otherwise terminated as provided herein, the term hereof shall
----
begin on the first Display Start Date and shall expire on the last Display
Stop Date.
AUTHORIZED SIGNATURES
In order to bind the parties to this Insertion Order Agreement, their duly
authorized representatives have signed their names below on the dates indicated.
This Agreement (including Exhibits A, B, C, D and E attached hereto and
incorporated by reference) shall be binding on both parties when signed on
behalf of each party and delivered to the other party (which delivery may be
accomplished by facsimile transmission of the signature pages hereto).
AOL ADVERTISER
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxx X. Xxxxx
----------------------------- ------------------------------
(signature) (signature)
Print Name: Xxxxx X. Xxxxxxx Print Name: Xxxx X. Xxxxx
--------------------- ----------------------
Title: SVP Business Affairs Title: Pres/CEO
-------------------------- ---------------------------
(Print or Type) (Print or Type)
Date: 12/16/98 Date: 12/15/98
-------------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
4
EXHIBIT A
---------
1. Authorization to Conduct Business. Advertiser hereby represents and
---------------------------------
warrants that it has obtained all necessary permits, licenses or other
authorizations from the United States Postal Service (the "USPS") which
permits Advertiser to conduct a beta test of the Advertiser Products by
advertising and offering for sale the Advertiser Products on the AOL
Service during the Phase I Promotions.
2. Phased Roll-Out of Promotions. The Advertisements provided hereunder shall
-----------------------------
be provided by AOL in accordance with the Insertion Order provided above,
subject to the following:
a. At least three (3) days prior to the Phase I Promotions Display Stop
Date, Advertiser shall provide AOL with a written notice which shall
contain the following:
i. a representation by Advertiser that Advertiser has obtained all
[***] and
---
ii. an election by Advertiser to receive the Phase II Promotions.
Provided, however, that if prior to the end of the Phase I
Promotions Advertiser [***], Advertiser shall provide AOL with a
---
written notice (provided at least two (2) days prior to the date
on which Advertiser wishes to begin receiving the Phase II
Promotions) (the "Acceleration Notice"), containing (A) the
representation required pursuant to Section 2(a)(i) of this
Exhibit A, and (B) an election by Advertiser to receive the Phase
II Promotions. In such event, the parties hereto shall create a
new insertion order which will indicate the new Display Start
Date of the Phase II Promotions, which insertion order shall be
attached hereto as an Exhibit. Notwithstanding the foregoing, (1)
upon receipt of an Acceleration Notice, AOL shall only be
obligated to place Advertisements for which Advertiser has
already provided the necessary creative art work and related
materials to AOL, and which requires less than two (2) days of
advance notice to place on the AOL Service; to the extent that
any Advertisement required to be placed during the Phase II
Promotions shall require more than two (2) days of advance notice
to be placed on the AOL Service, AOL shall provide such
Advertisements within thirty (30) days after receipt of the
Acceleration Notice; (2) AOL shall not be obligated to provide
the Phase II Promotions unless and until Advertiser makes the
representation required pursuant to Section 2(a)(i) of this
Exhibit A; and (3) if Advertiser does not [***], either party
---
shall have the right to immediately terminate this Insertion
Order Agreement without any further obligation or liability of
any kind (other than any liability incurred by either party prior
to such date) to the other party on account of such termination.
In the event of such termination, Advertiser shall have no
further payment obligations under this Insertion Order Agreement
other than payment obligations due and payable at the time of
termination.
3. Additional Promotions.
---------------------
a. Phase I. During the Phase I Promotions, from time to time, Advertiser
--------
shall have the right to purchase up to [***] from AOL subject to the
---
following restrictions:
i. Advertiser shall purchase such additional impressions [***]
---
pursuant to an AOL Insertion Order Agreement entered into by
Advertiser and AOL (an "Insertion Order") which will be attached
hereto as an exhibit,
ii. Advertiser shall submit the relevant Insertion Order to AOL at
least five (5) days prior to the date on which Advertiser wishes
to begin receiving impressions; and
iii. AOL's obligation to deliver any additional impressions pursuant
to this Section 3 shall be subject to the availability of
advertising inventory on the AOL Service from which AOL can
deliver such additional impressions.
b. Phase II. During the Phase II Promotions, from time to time,
---------
Advertiser shall have the right to purchase up to [***] from AOL
---
subject to the restrictions contained in Section 3(a)(i), (ii) and
(iii). Notwithstanding the foregoing, in the event that the
transaction between AOL and Advertiser which is contemplated under
Section 9 hereof is not consummated, or if Advertiser expends less
than the amounts earmarked for such transactions, Advertiser will use
the funds earmarked for such transaction (or any remaining portion
thereof) to purchase up to [***] from AOL subject to the provisions of
---
Section 3(a)(i), (ii) and (iii).
4. Product Parity. Advertiser will ensure that the prices, terms and
--------------
conditions for the Advertiser Products in the Affiliated Advertiser Site
are no less favorable than the prices, terms and conditions on which the
Advertiser Products or substantially similar products are offered by or on
behalf of Advertiser through any other distribution channels.
---------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
5
5. Special Offers/Member Benefits. Advertiser will generally promote through
------------------------------
the Affiliated Advertiser Site any special or promotional offers made
available by or on behalf of Advertiser through any other distribution
channels directed primarily at a consumer audience (i.e., non-corporate
customers). Advertiser shall not be required to comply with the foregoing
provision if compliance therewith would result in a breach by Advertiser of
any contractual arrangements with third parties, and it is understood by
the parties that the foregoing shall not prevent Advertiser from providing
one time special offers which may not be appropriate for AOL users. In
addition, Advertiser shall promote (a) at least [***] to AOL users (the
---
"AOL Special Offers") and (b) at least [***] in connection with the Stamp
---
Days Promotions described in Section 10 hereof (the "Stamp Days Promotion
Special Offer"). AOL Special Offers made available by Advertiser shall
provide a substantial benefit to AOL users as reasonably determined by
Advertiser, either by [***] Advertiser shall have the right to promote
---
special or promotional offers to AOL users which in addition to the
promotion of Advertiser, may promote other third parties; provided that,
(i) [***] (ii) [***] and (iii) such special or promotional offers shall
--- ---
[***] Advertiser will provide AOL with reasonable prior notice of the AOL
---
Special Offers and the Stamp Days Promotion Special Offer so that AOL can
market the availability of such special offers in the manner AOL deems
appropriate in its editorial discretion.
6. Advertiser Promotion of AOL. [***] within Advertiser's web sites on the
--------------------------- ---
World Wide Web portion of the Internet that are not co-branded with a third
party (each an "Advertiser Web Site"), at AOL's option, Advertiser shall
include one of the following (each an "AOL Promo"): (i) [***] to promote
---
such AOL products or services as AOL may designate (for example, the
America Online brand service, the CompuServe brand service, the XXX.xxx
site, any of the Digital City services or the AOL Instant Messenger
service); or (ii) [***] through which users can obtain promotional
---
information about AOL products or services designated by AOL and, at AOL's
option, download or order the then-current version of client software for
such AOL products or services. AOL will provide the creative content to be
used in the AOL Promo (including designation of links from such content to
other content pages). To the extent Advertiser notifies AOL of reasonable
complaints or concerns regarding the AOL Promo or any other content or
materials linked thereto or associated therewith ("Objectionable AOL
Content"), AOL will, to the extent such Objectionable AOL Content is within
AOL's control, use commercially reasonable efforts to respond in good faith
to such complaints or concerns. Advertiser shall use reasonable efforts to
post (or update, as the case may be) the creative content supplied by AOL
within the spaces for the AOL Promos within five days of its receipt of
such content from AOL. In the event that AOL elects to serve the AOL Promos
to the Advertiser Web Site from an ad server controlled by AOL or its
agent, Advertiser shall take all reasonable operational steps necessary to
facilitate such ad serving arrangement including, without limitation,
inserting HTML code designated by AOL on the pages of the Advertiser Web
Site on which the AOL Promos will appear. In addition, in Advertiser's
television, radio, print and "out of home" (e.g., buses and billboards)
advertisements and in any publications, programs, features or other forms
of media over which Advertiser exercises at least partial editorial
control, Advertiser will include specific references or mentions (verbally
where possible) of the availability of the Affiliated Advertiser Site
through the AOL Service, [***] (by way of site name, related company name,
---
URL or otherwise). Without limiting the generality of the foregoing, (i)
Advertiser's listing of the "URL" for any Advertiser Web Site will be
accompanied by an equally prominent listing of the "keyword" term on AOL
for the Affiliated Advertiser Site (if any) and (ii), Advertiser shall use
commercially reasonable efforts to promote any special offers offered on
the AOL Service through its offline promotional efforts (e.g., cable and or
television advertising buys). In connection with the foregoing, AOL will
[***] for any new subscribers to the AOL Service who subscribe to the AOL
---
Service through the AOL Promo.
7. Functionality of Advertiser Product. In the event that any Advertiser
------------------------------------
Products (or any software associated therewith) that are promoted and sold
through the Advertisements result in a poor user experience for a
significant number of AOL users (e.g., poor user interface, incompatible
software, unusable software, software which contain bugs or viruses which
substantially reduces the usability of the Advertiser Product, or software
which does not perform the functions for which it is advertised), and
provided that Advertiser does not remedy such poor user experience within
[***] after written notice from AOL [***] In the event of such [***].
--- --- ---
8. Distribution of Advertiser Software with AOL Store Fulfillment Packages.
-----------------------------------------------------------------------
AOL will facilitate the distribution of the software developed by
Advertiser which is necessary for the operation of Advertiser's electronic
stamp product and enables end-users to purchase postal services
electronically through Advertiser's network (the "Advertiser Software")
through a third party package fulfillment distributor (the "Distributor")
in accordance with the terms and conditions of the agreement attached
hereto as Exhibit D. Advertiser will pay the Distributor up to [***] (the
---
"Set-Aside Payment") in consideration for the distribution of the
Advertiser Software. [***]
9. Distribution of Advertiser Software with AOL 4.0 CD-ROMS. AOL will
--------------------------------------------------------
distribute the Advertiser Software of Advertiser in accordance with the
provisions of Exhibit E attached hereto.
---------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
6
10. Stamp Days Promotion/Rainman Production. With respect to the Special
---------------------------------------
Campaign Promotion: Stamp/Postage Days listed on Exhibit B (each a "Stamp
Day Promotion" and collectively "Stamp Day Promotions"), AOL will work with
Advertiser to create various editorial and programming content related to
the Advertiser Products. AOL shall be responsible for the creation of a
rainman area (the " Stamp Rainman Area") on the AOL Service to promote
Stamp Days. Advertiser shall be responsible for providing AOL with content
and promotions to be promoted by AOL during Stamp Days. At Advertiser's
option, the Stamp Days promotion may occur over a period of three (3)
contiguous days or three (3) separate and unrelated days and Advertiser
shall provide AOL with no less than forty five (45) days notice prior to
the time that Advertiser wishes to receive the Stamp Days promotion or a
Stamp Day promotion. In addition to the Stamp Rainman Area, AOL will
program and create at least one other rainman area for Advertiser which
will contain such content and promotions as mutually agreed upon by the
parties hereto (the "Additional Rainman Area" and together with the Stamp
Rainman Area the "Rainman Areas"). AOL will incur the expense of creating
the Rainman Areas up to [***]. If the costs associated with the Rainman
---
Areas exceed [***].
---
11. Keyword: Stamps. AOL will create a [***] in the appropriate areas of the
----------------- ---
AOL Service to which Keyword Stamp or Stamps will link. Such [***] will
---
contain programming created by AOL in its sole discretion, provided that,
AOL shall provide Advertiser with a button or link on such screen which
will link to the Advertiser Site or any other area agreed upon by the
parties and Advertiser shall be the [***]. In addition to the foregoing,
---
subject to the provisions hereof, Advertiser shall have the right to use
the AOL Keyword Term Xxxxxx.xxx and [***] additional AOL Keyword Term as
---
mutually agreed upon by the parties.
---------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
7
EXHIBIT B
---------
PHASE II PROMOTIONS
-------------------------------------------------------------------------------------------------------------------
Impressions Percent of Average CPM Total Cost
Carriage
-------------------------------------------------------------------------------------------------------------------
Level A -- Highly Targeted [***] [***] [***] [***]
--- --- --- ---
-------------------------------------------------------------------------------------------------------------------
Level B - Targeted [***] [***] [***] [***]
--- --- --- ---
-------------------------------------------------------------------------------------------------------------------
Level C -- Relevant Broad Reach [***] [***] [***] [***]
--- --- --- ---
-------------------------------------------------------------------------------------------------------------------
Campaign Promotion: Stamp Days [***] [***] [***] [***]
--- --- --- ---
-------------------------------------------------------------------------------------------------------------------
Total Campaign [***] [***] [***] [***]
--- --- --- ---
-------------------------------------------------------------------------------------------------------------------
Level A Promotions Type of Promotion
------------------ -----------------
AOL Network
[***] [***]
--- ---
XXX.xxx
[***]
---
CompuServe
----------
[***] [***]
--- ---
Level B Areas
-------------
XXX.xxx
[***] [***]
--- ---
Digital City
[***] [***]
--- ---
Level C Areas
-------------
AOL Network
[***] [***]
--- ---
XXX.xxx
[***] [***]
--- ---
---------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
8
Special Campaign Promotion:
---------------------------
Stamp/Postage Days (3-day
--------------------------
promotion)
----------
Email
News
AOL Network
Remnant and Promotional Support
Vehicles
------------------------------------------------------------------------------
*Subject to Advertiser's compliance with all technical and programming
requirements (including quality assurance testing) of AOL.
**Advertiser will only be provided with these Promotions if the Phase II
Promotions [***]
---
*** List to include: mail, mailing, post, postal, postage, stamp, stamps
------------------------------------------------------------------------------
---------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
9
EXHIBIT C
---------
AOL Advertising Standard Terms and Conditions
---------------------------------------------
1. Advertising Material/Display. Advertiser acknowledges that the sole
----------------------------
obligation of America Online, Inc. ("AOL") is to display an advertisement or
icon (the "Advertisement") from Advertiser which conforms to the
specifications set forth in the applicable Insertion Order Agreement which
has been executed by AOL and Advertiser (the "Insertion Order," and,
collectively with these Standard Terms and Conditions, the "Insertion Order
Agreement") through the standard narrowband U.S.-based America Online brand
service (excluding any sub-products, sub-services or third party areas which
may be offered therein) or such other U.S.-based AOL property as may be
expressly described as the site for placement in the Insertion Order (the
"AOL Service"). Subject to Advertiser's reasonable approval, AOL will have
the right to fulfill its promotional commitments with respect to the
Advertisements by providing Advertiser with comparable placements of the
Advertisements in alternative areas of the AOL Service. AOL reserves the
right to redesign or modify the organization, structure, "look and feel" and
other elements of the AOL Service (including any redesign of the Workplace
Business Services: Postage Category) at its sole discretion at any time
without prior notice (a "Redesign"). In the event such modifications will
materially and adversely affect the placement of the Advertisement, AOL will
work with Advertiser to display the Advertisement in a comparable location
and manner that is reasonably satisfactory to Advertiser. Except as
expressly provided in the Insertion Order, the specific nature and
positioning of the Advertisement will be as determined by AOL in its
editorial discretion. Advertiser agrees that AOL has the right to market,
display, perform, transmit and promote the Advertisement through the AOL
Service and in connection therewith, subject to the terms and conditions
hereof, Advertiser hereby grants to AOL a non-exclusive, non-sublicensable
(except to an Affiliate of AOL) and non-transferable license to use the
names specified by Advertiser from time to time which Advertiser shall have
a legal right to use (the "Advertiser Marks") in the Advertisements and in
connection with the advertising, marketing and promotion of the Advertiser
Products on the AOL Service. Additionally, AOL shall have the right to use
the Advertiser Marks in connection with the distribution of the Advertiser
Software in accordance with Exhibit E. AOL hereby acknowledges and agrees
that (i) except as set forth herein, AOL has no rights, title or interest in
or to the Advertiser Marks, (ii) AOL shall not challenge Advertiser's
exclusive rights in and to the Advertiser Marks, (iii) AOL shall not apply
for registration of the Advertiser Marks anywhere in the world, (iv) AOL
shall not alter any of the Advertiser Marks in any way and shall use the
Advertiser Marks exactly as provided by Advertiser, (v) the use by AOL of
the Advertiser Marks shall inure to the benefit of Advertiser with respect
to Advertiser's rights and ownership in and to the Advertiser Marks, and
(vi) Advertiser reserves all rights not expressly granted to AOL hereunder
in connection with the Advertiser Marks. AOL shall use reasonable efforts to
notify Advertiser promptly of any infringement of any copyrights,
trademarks, or other intellectual property or proprietary rights relating to
the Advertiser Software of which AOL is aware. Advertiser may, in its sole
discretion, take or not take whatever action it believes is appropriate in
connection with any such infringement. In the event that AOL intends to use
an Advertiser Xxxx in a manner which was not previously approved by
Advertiser, AOL shall provide notice to Advertiser of its intended use of
such Advertiser Xxxx, Advertiser shall then have three (3) business days to
respond to AOL's proposed use of such Advertiser Xxxx, and if Advertiser
does not respond in such three (3) day period, AOL's use of such Advertiser
Xxxx shall be deemed approved. Additionally, Advertiser agrees that users of
the AOL Service have the right to access and use the Advertisement together
with any content or materials linked to the Advertisement (the "Advertiser
Content"). The Advertiser Content (a) shall not offer or promote any other
products and/or services other than those expressly provided for in the
relevant Insertion Order, (b) will link only to the site specified on the
Insertion Order and (c) shall not (1) disparage AOL; (2) promote any product
or service which is reasonably competitive with one or more of the principal
products or services offered through AOL's products and services (other than
the Advertiser Products) ("Competitive Products") on any page of the
Affiliated Advertiser Site which is directly linked to the AOL Service; (3)
be in contravention of AOL's generally applicable advertising standards and
practices, as such may be modified by AOL from time to time; or (d) violate
any applicable law, regulation or third party right (including, without
limitation, any copyright, trademark, patent or other proprietary right).
Additionally, Advertiser shall consistently update the Advertiser Content
and will review, delete, edit, create, update and otherwise manage such
content in accordance with the terms of this Insertion Order Agreement. In
no event shall the Advertisement or the linked area state or imply that (i)
the Advertisement was placed by AOL or (ii) that AOL endorses Advertiser's
products or services. To the extent AOL notifies Advertiser of reasonable
complaints or concerns (e.g., from an AOL member) regarding the Advertiser
Content or any other content or materials linked thereto or associated
therewith ("Objectionable Content"), Advertiser will, to the extent such
Objectionable Content is within Advertiser's control, use commercially
reasonable efforts to respond in good faith to such complaints or concerns.
AOL may alter or shorten the flight dates set forth in the Insertion Order
if advertising materials required per the Insertion Order are not provided
in a timely manner, and Advertiser shall not be entitled to any refund or
proration for delays caused by Advertiser's failure to deliver such
materials.
2. Operations. Unless expressly provided for elsewhere in this Insertion Order
----------
Agreement, AOL will have no obligation to provide any creative, design,
technical or production services to Advertiser ("Services"). Delivery by AOL
of any such Services shall be subject to (i) AOL's availability to perform
the requested work, (ii) execution by both parties of a separate work order
specifically outlining the Services to be provided and the fees to be paid
by Advertiser for such Services and (iii) payment in advance by Advertiser
of such fees. Advertiser will ensure that the Advertiser Content and the
site linked to the Advertiser Content are in compliance with AOL's then-
current, generally applicable technical standards and will take all
reasonable steps necessary to conform the Advertiser Content to the then-
existing technologies identified by AOL which are optimized for the AOL
Service (including, without limitation, any "quick checkout" tool which AOL
may implement to facilitate purchase of products by AOL users). In the event
that the Advertiser Content or the site linked to the Advertiser Content
fails to comply with AOL's generally applicable technical standards, AOL
shall have the right to cease or decrease the placement of the
Advertisements, and if Advertiser is unable to cure such non-compliance
within five business days after notice from AOL, AOL shall have the right to
terminate this Insertion Order Agreement. Additionally, AOL will be entitled
to discontinue links to Advertiser Content to the extent such Advertiser
Content will, in AOL's good faith judgment, adversely affect the operations
of the AOL Service. Advertiser will bear full responsibility for all
customer service, including without limitation, order processing, billing,
fulfillment, shipment, collection and other customer support associated with
any products or services offered, sold or licensed through Advertiser's
site, and AOL will have no obligations whatsoever with respect thereto.
Advertiser will take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted or promoted through the
Advertiser Content complies with all applicable federal, state and local
laws and regulations.
3. Search Terms/Keywords. To the extent Advertiser is purchasing an
----------------------
Advertisement related to an Internet-based "search" term, Advertiser
represents and warrants that Advertiser has the legal rights necessary to
utilize such search term in connection with the Advertisement. Any "keyword"
terms for navigation from within the proprietary America Online brand
service ("AOL Keyword Terms") (as contrasted to Internet-based search terms)
which may be made available to Advertiser shall be (i) subject to
availability and (ii) limited to the combination of the keyword modifier
combined with a
10
registered trademark of Advertiser. AOL reserves the right to revoke at any
time Advertiser's use of any AOL Keyword Terms which do not incorporate
registered trademarks of Advertiser. Advertiser acknowledges that its
utilization of any AOL Keyword Term will not create in it, nor will it
represent it has, any right, title or interest in or to such AOL Keyword
Term, other than the right, title and interest Advertiser holds in
Advertiser's registered trademark independent of the AOL Keyword Term.
4. Payment; Cancellation. Advertiser agrees to pay AOL for all advertising
---------------------
displayed in accordance with the agreed upon amounts and billing schedule
shown on the relevant Insertion Order. Advertising packages are
nonrefundable or proratable except to the extent otherwise expressly
contemplated hereunder. Should AOL fail to display the Advertisements in
accordance with the Insertion Order due to Advertiser's failure to comply
with any requirement of the Insertion Order or this Insertion Order
Agreement, Advertiser will remain liable for the full amount indicated on
the Insertion Order. In the event of a Redesign, if AOL and Advertiser
cannot reach agreement on a substitute placement, Advertiser shall have the
right to cancel the Advertisement upon thirty (30) days advance written
notice to AOL. In such case, Advertiser will only be responsible for the
pro-rata portion of payments attributable to the period from the
commencement of the Insertion Order Agreement through the effectiveness of
such cancellation (the "Pro Rata Payments"). AOL reserves the right to
cancel and remove at any time any Advertisement in the event that AOL
reasonably and in good faith believes that further display of the
Advertisement will expose AOL to liability or other adverse consequences. In
the event of such a cancellation, Advertiser will only be responsible for
the Pro-Rata Payments. Advertiser may not resell, trade, exchange, barter or
broker to any third-party any advertising space which is the subject of this
Insertion Order Agreement.
5. Usage Data. AOL will provide Advertiser with usage information related to
----------
the Advertisement in substance and form determined by AOL, consistent with
its then-standard reporting practices. Advertiser may not distribute or
disclose usage information to any third party without AOL's prior written
consent. Additionally, AOL will not disclose usage information to a third
party in a manner which connects Advertiser to such usage information.
6. Each party acknowledges that Confidential Information may be disclosed to
the other party during the course of this Insertion Order 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 Insertion Order Agreement, and for a period of three
years following expiration or termination of this Insertion Order Agreement,
to prevent the duplication or disclosure of Confidential Information of the
other party, other than by or to its employees or agents who must have
access to such Confidential Information to perform such party's obligations
hereunder, who will each agree to comply with this Section 6.
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 press release or 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 Insertion Order 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
Insertion Order 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. For
the purposes hereof, "Confidential Information" shall mean any information
relating to or disclosed in the course of the Insertion Order 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 Insertion Order Agreement, information about AOL
users, 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 the receiving
party and which the receiving party has a reasonable basis to believe it may
use or disclose without restriction, (b) independently developed by the
receiving party, (c) disclosed in published materials except as disclosed by
the receiving party in breach of this Section 6, (d) generally known to the
public except as disclosed by the receiving party in breach of this Section
6, or (e) lawfully obtained from any third party without restriction.
7. Limitation of Liability; Disclaimer; Indemnification.
----------------------------------------------------
(A) EXCEPT AS PROVIDED IN SECTION 7(C)(I)(A) AND SECTION 7(C)(II)(A) BELOW,
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING
FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED FOR HEREIN. EXCEPT
AS PROVIDED IN SECTION 7(C) LIABILITY ARISING UNDER THIS INSERTION ORDER
AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND THE
MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN
CONNECTION WITH THIS INSERTION ORDER AGREEMENT WILL NOT EXCEED THE AGGREGATE
AMOUNT TO BE PAID BY ADVERTISER DURING THE YEAR IN WHICH THE LIABILITY
ACCRUES.
(B)(I)(A) AOL MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL SERVICE OR ANY PORTION
THEREOF, 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 (1) THE NUMBER OF PERSONS WHO
WILL ACCESS THE ADVERTISER CONTENT OR "CLICK-THROUGH" THE ADVERTISEMENTS,
(2) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM INCLUDING THE ADVERTISEMENT
WITHIN THE AOL SERVICE AND (3) THE FUNCTIONALITY, PERFORMANCE OR OPERATION
OF THE AOL SERVICE WITH RESPECT TO THE ADVERTISEMENTS, AND (B) EXCEPT AS
SPECIFICALLY PROVIDED IN CLAUSE II BELOW, ADVERTISER MAKES NO AND HEREBY
SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
(II) Advertiser warrants to AOL that the Advertiser Software will, under
normal use, conform to the limited warranty contained in the Software
License Agreement (as defined in Exhibit E) applicable to the Advertiser
Software during the warranty period set forth in such Software License
Agreement (the "Warranty Period"). The foregoing warranty will apply only to
the version of the Advertiser Software distributed by AOL in accordance with
Exhibit E. If a Customer (as defined in Exhibit E) contacts Advertiser
during the Warranty Period claiming a breach of the warranty set forth in
the Software License Agreement provided with the Advertiser Software
distributed by AOL in accordance with Exhibit E, Advertiser will use
reasonable efforts to resolve the claim directly with such Customer by
correcting or replacing such Advertiser Software. If a Customer contacts AOL
during the Warranty Period claiming any such breach of warranty, AOL will
use reasonable efforts to promptly refer the matter to Advertiser.
(C) (i) Advertiser hereby agrees to indemnify, defend and hold harmless AOL
and the officers, directors, agents, affiliates,
11
distributors, franchises and employees of AOL from and against all claims,
actions, liabilities, losses, expenses, damages and costs (including,
without limitation, reasonable attorneys' fees) that may at any time be
incurred by any of them by reason of any claims, suits or proceedings to the
extent such claims, suits or proceedings arise out of or are related to: (a)
third party claims (1) for libel, defamation, violation of right of privacy
or publicity, copyright infringement, trademark infringement or other
infringement of any third party right, fraud, false advertising,
misrepresentation, product liability or violation of any law, statute,
ordinance, rule or regulation throughout the world in connection with the
Advertisements or Advertiser Content provided by Advertiser to AOL hereunder
or in connection with the Advertiser Software distributed by AOL hereunder
(collectively referred to as the "Advertiser Rights Violations"); provided,
however, that Advertiser shall have no such indemnification obligation to
the extent that any alleged Advertiser Rights Violation arises from or in
connection with any (x) modification or other alteration of any
Advertisement or Advertiser Content provided to AOL by Advertiser hereunder,
without Advertiser's prior approval, (y) (i) use of any Advertisement or
Advertising Content other than in a manner specified hereunder or authorized
by Advertiser (ii) claim based upon the combination of the Advertisement,
the Advertising Content, or the Advertiser Software with other content,
software technology or materials which Advertiser has not approved, or (z)
(i) any Advertiser Software that has been modified by AOL without the prior
consent of Advertiser, (ii) use of the Advertiser Software by AOL in a
manner which is beyond the scope of the license granted to it by Advertiser
pursuant to Exhibit E, (iii) AOL's use of the Advertiser Software after
notice from Advertiser of infringement or misappropriation ((i) (ii) and
(iii) collectively the "Advertiser Software Exceptions"); (2) any material
breach by Advertiser of any duty, representation or warranty under this
Insertion Order Agreement; or (3) any contaminated file, virus, worm or
Trojan horse originating solely from the Advertisements or Advertiser
Content, or (4) solely arising out of or in connection with the ability of
the Advertiser Software distributed by AOL hereunder to process calendar
date values, including but not limited to, calendar date values from January
1, 1999 through or beyond January 1, 2000, and in processing such calendar
values, to operate in accordance with the procured system documentation or
whether any or all data fields for calendar date values and data are four
digit fields capable of indicating century and millennium or addressing leap
years correctly, and (b) any contaminated file, virus, worm or Trojan horse
originating solely from the Advertisements or Advertiser Content.
(ii) [***]
---
(iii) [***]
---
8. Solicitation.
------------
(a) Advertiser will not send unsolicited, commercial e-mail (i.e., "spam")
through or into AOL's products or services, absent a prior business
relationship, and will comply with any other standard AOL policies and
limitations relating to distribution of bulk e-mail solicitations or
communications through or into AOL's products or services (including,
without limitation, the requirement that Advertiser provide a prominent and
easy means for the recipient to "opt-out" of receiving any future commercial
e-mail communications from Advertiser. Advertiser will not use the
Advertisement or any other aspect of AOL's products or services to promote
or solicit on behalf of a Competitive Product.
(b) Advertiser shall ensure that its collection, use and disclosure of
information obtained from AOL members under this Insertion Order Agreement
("Member Information") complies with (i) all applicable laws and regulations
and (ii) AOL's standard privacy policies, available on the AOL Service at
the keyword term "Privacy" (or, in the case of Advertiser's site,
Advertiser's standard privacy policies so long as such policies are
prominently published on the site and provide adequate notice, disclosure
and choice to users regarding Advertiser's collection, use and disclosure of
user information).
(c) Advertiser shall ensure that each request of Member Information shall
clearly and conspicuously specify to the AOL members at issue the purpose
for which the Member Information collected by Advertiser shall be used (the
"Specified Purpose"). Advertiser shall limit use of the Member Information
to the Specified Purpose. In the case of AOL members who purchase products
or services from Advertiser, Advertiser will be entitled to incorporate such
members into Advertiser's aggregate lists of customers; provided that
Advertiser shall in no way: (i) disclose Member Information in a manner that
identifies AOL members as end-users of an AOL product or service (or in any
other manner that could reasonably be expected to facilitate use of such
information by or on behalf of a Competitive Product); or (ii) otherwise use
such Member Information in connection with marketing of a Competitive
Product. This section shall survive the completion, expiration, termination
or cancellation of this Insertion Order Agreement.
9. Miscellaneous. The parties to this Insertion Order Agreement are independent
-------------
contractors. Neither party is an agent, representative or partner of the
other party. Neither party shall have any right, power or authority to enter
into any agreement for or on behalf of, or incur any obligation or liability
of, or to otherwise bind, the other party. The failure of either party to
insist upon or enforce strict performance by the other party of any
provision of this Insertion Order Agreement or to exercise any right under
this Insertion Order Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon
any such provision or right in that or any other instance. Except where
otherwise specified herein or in the Insertion Order, the rights and
remedies granted to a party under this Insertion Order 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. Advertiser shall
not (i) issue any press releases or public statements concerning the
existence or terms of this Insertion Order Agreement or (ii) use, display or
modify AOL's trademarks in any manner absent AOL's express prior written
approval. Either party may terminate this Insertion Order Agreement (a) at
any time with written notice to the other party in the event of a material
breach of this Insertion Order Agreement by the other party, which remains
uncured after thirty days written notice thereof; (b) immediately following
written notice to the other party if the other party (1) ceases to do
business in the normal course, (2) becomes or is declared insolvent or
bankrupt, (3) 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 (4) makes an assignment for the benefit of
creditors. Additionally, in the event of a change of control of Advertiser
which results in control of more than 50% of the equity securities of
Advertiser or the power to vote for the election of directors or other
governing authority of Advertiser by an AOL Competitor , AOL may terminate
this Insertion Order Agreement by providing forty five (45) days prior
written notice of such intent to terminate. For the purposes hereof, an "AOL
Competitor" shall be any entity listed on Exhibit F attached hereto;
provided, however, that from time to time AOL shall have the right to add to
such list as reasonably determined by AOL, provided that AOL may add to such
list no more than once every three months. Notwithstanding the foregoing, to
the extent that Advertiser can demonstrate to AOL's reasonable satisfaction
that Advertiser is engaged in negotiations with any third party that is not
listed on Exhibit F, which negotiations would result in a change of control
of Advertiser as provided herein, AOL shall not have the right to add such
third party to the list after Advertiser has so reasonably demonstrated to
AOL that Advertiser is in negotiations with such third party. This Insertion
Order Agreement sets forth the entire agreement between Advertiser and AOL,
and supersedes any and all prior agreements of AOL or Advertiser with
respect to the transactions set forth herein. No change, amendment or
modification of any provision of this Insertion Order Agreement shall be
valid unless set forth in a written instrument signed by the party subject
to enforcement of such amendment. Advertiser shall not assign this Insertion
Order Agreement or any right, interest or benefit under this Insertion Order
Agreement without the prior written consent of AOL. Assumption of the
Insertion Order Agreement by any successor to Advertiser (including, without
--------------------------------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
12
limitation, by way of merger or consolidation) shall be subject to AOL's
prior written approval. Subject to the foregoing, this Insertion Order
Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and
assigns. In the event that any provision of this Insertion Order Agreement
is held invalid by a court with jurisdiction over the Parties to this
Insertion Order Agreement, (i) such provision shall be deemed to be restated
to reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law and (ii) the remaining terms, provisions,
covenants and restrictions of this Insertion Order Agreement shall remain in
full force and effect. Both parties shall adhere to all applicable laws,
regulations and rules relating to the export of technical data and shall not
export or re-export any technical data, any products received from the other
party or the direct product of such technical data to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized. This Insertion Order Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same document. Except with respect to any claims
brought by Advertiser in connection with Exhibit E or with respect to the
AOL Promos, this Insertion Order Agreement shall 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. Except as
otherwise provided herein, Advertiser hereby irrevocably consents to the
exclusive jurisdiction of the courts of the Commonwealth of Virginia and the
federal courts situated in the Commonwealth of Virginia in connection with
any action arising under this Insertion Order Agreement. With respect to any
claims brought by Advertiser in connection with Exhibit E or with respect to
the AOL Promos, such claims will be interpreted and enforced in accordance
with the laws of the State of California and AOL hereby consents to the
exclusive jurisdiction of the courts of the State of California and the
federal courts situated in the State of California in connection with any
claim brought by Advertiser in connection with Exhibit E or with respect to
the AOL Promos.
13
EXHIBIT D
---------
AOL TO PROVIDE
--------------
14
EXHIBIT E
---------
ADVERTISER SOFTWARE DISTRIBUTION TERMS AND CONDITIONS
-----------------------------------------------------
1. Terms and Conditions. The following terms and conditions shall govern the
--------------------
distribution by AOL of the advertiser software.
2. Definitions. As used in this Exhibit E, the following terms shall have the
-----------
following meanings:
"Affiliate" shall mean an entity in which AOL holds at least a nineteen
---------
percent (19%) equity interest.
"AOL Client" shall mean the object code form of the client software for
----------
Xxx00, Xxx00 and Mac developed and distributed by AOL that enables end-users
to subscribe to, access and use the AOL Service, and upgrades thereto.
"Authorized Testing Service" shall mean any third-party person or entity
--------------------------
designated in writing by AOL, in its sole discretion, to offer support and
quality assurance services relating to interoperability of third party
products with the AOL Client and the AOL Service.
"Commerce Customer" shall mean any Customer of Advertiser acquired through
-----------------
distribution of the Advertiser Software by AOL as provided hereunder and who
purchases the Advertiser Product at least two times.
"Customer" shall mean end-user customers of the Advertiser Software.
--------
"Documentation" shall mean the documentation provided to AOL by Advertiser
-------------
for use with the Advertiser Software. "Software
--------
"License Agreement" shall mean Advertiser's standard software license
-----------------
agreement between Advertiser and Customers, as provided by Advertiser to AOL
for inclusion with the Advertiser Software.
3. License Grant. Subject to all the terms and conditions of this Insertion
-------------
Order Agreement, Advertiser hereby grants to AOL and its Affiliates a
worldwide, non-exclusive, non-transferable, royalty-free license to use,
reproduce, market, promote and distribute to end users through its usual and
customary channels of distribution, solely to the limited extent and for the
express purposes stated herein, the Advertiser Software in object code form,
through CD-ROMs any other physical media containing the AOL client.
4. Copying/Reverse Engineering. AOL agrees not to (i) disassemble, decompile
---------------------------
or otherwise reverse engineer the Advertiser Software or otherwise attempt
to learn the source code, structure, algorithms or ideas underlying the
Advertiser Software, (ii) take any action contrary to Advertiser's Software
License Agreement, except as expressly and unambiguously agreed upon by
Advertiser, (iii) alter or modify the Advertiser Software except as agreed
upon by Advertiser, (iv) attempt to disable any security devices or codes
incorporated in the Advertiser Software, or (v) allow or assist others to do
any of the foregoing.
5. Advertiser's Obligations.
------------------------
(i) Certification Requirements. AOL shall provide to Advertiser a written
--------------------------
copy of, and Advertiser shall comply with, all quality assurance and
testing requirements for the Advertiser Software to be distributed by
AOL hereunder, as may be reasonably amended by AOL from time to time,
and together with any other reasonable quality assurance and testing
requirements delivered by AOL in writing (including amendments) to
Advertiser, the ("Certification Requirements").
(ii) Support and Quality Assurance by the Authorized Testing Service. The
---------------------------------------------------------------
Authorized Testing Service shall provide support and quality
assurance testing with respect to the Advertiser Software and
interoperability of such products with the AOL Client and the AOL
Service. Support and quality assurance testing shall be provided on
terms and conditions to be worked out between Advertiser and the
Authorized Testing Service and at Advertiser's expense. In connection
with the foregoing, Advertiser shall deliver a master copy of the
Advertiser Software in object code form, along with any required
Documentation to the Authorized Testing Service and AOL no later than
[***]. The Authorized Testing Service shall perform quality assurance
---
testing on the Advertiser Products in accordance with the
Certification Requirements. If and when the Authorized Testing
Service determines that any such product meets the relevant
Certification Requirements, the Authorized Testing Service shall then
certify in writing that such product is a "Complying Product". AOL
shall use commercially reasonable efforts, if and to the extent
within its control and consistent with the purposes hereof, to help
expedite such testing processes by the Authorized Testing Service.
(iii) AOL Release Approval. AOL shall have the right to inspect the
--------------------
Complying Product prior to commercial production or public release by
AOL under this Agreement. AOL shall, in its discretion (but based
upon commercially reasonable factors (including without limitation a
change of control of Advertiser, or technical or operational problems
or incompatibilities), provide notice of approval or rejection within
fifteen (15) business days of receiving certification from the
Authorized Testing Service that such product is a Complying Product
together with a copy of the Complying Product.
-----------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
15
AOL shall have no obligation to distribute any copy of the Advertiser
Software that has not first obtained release approval from AOL. The
parties may negotiate in good faith to cure any circumstance or issue
causing AOL to so reject, provided that if AOL does not approve
release pursuant to this Section 5(iii), then AOL shall refund to
Advertiser any payments made by Advertiser to AOL pursuant to Section
9(i) of this Exhibit E.
(iv) Re-certification Requirements. Revisions of copies of the Advertiser
-----------------------------
Software that have previously been certified by the Authorized
Testing Service must be re-certified. For purposes of this provision,
a "revision" is defined as any version of a Complying Product that
contains programming code that differs materially from the Complying
Product. Without limiting the foregoing, revisions include
maintenance updates, patches, fixes, and new releases of a Complying
Product. Revisions to a Complying Product shall be re-certified
according to the Certification Requirements, unless AOL or the
Authorized Testing Service first provides to Advertiser in writing a
list of "Re-Certification Requirements," if any, in which case such
Re-Certification Requirements shall apply.
6. AOL's Distribution Obligations. Subject to the provisions of Section 5
------------------------------
of this Exhibit E, and provided that Advertiser is otherwise in compliance
with the provisions of this Insertion Order Agreement, AOL shall distribute
the Advertiser Software with a [***] AOL 4.0 CD-ROMs containing the AOL
---
Client which is sent by AOL in direct marketing programs to prospective AOL
customers during the period commencing on [***] (the "Distribution Period");
---
provided however, that (i) AOL shall have the right to continue distribution
of the Advertiser Software after the Distribution Period has ended subject
to the terms and conditions hereof and (ii) if Advertiser shall not have
delivered a master copy of the Advertiser Software to the authorized testing
service and AOL by [***], then AOL shall no longer be obligated to
---
distribute the Advertiser Software with [***] AOL 4.0 CD-ROMs, and in such
---
event, AOL `s sole obligation will be to distribute the Advertiser Software
during the period commencing on the date on which the Advertiser Software
becomes a complying product and ending at the end of the Distribution
Period. When the end-user installs the AOL Client on the end-user's system,
the Advertiser Software installation program will be automatically copied
onto the end-user's hard drive, and the end-user will be presented with the
opportunity to install the Advertiser Software. AOL will distribute the
Advertiser Software together with, and subject to, the terms of the Software
License Agreement furnished by Advertiser. Notwithstanding the foregoing,
(i) once AOL begins distribution of the advertiser software, AOL shall not
be obligated to distribute any updates or upgrades to the Advertiser
Software, and (ii) AOL reserves the right, in the event of technical
problems or incompatibilities (e.g., new "bugs"), excessive usage, or other
situations which may adversely affect the user experience or AOL's costs
(collectively, an "Adverse User Situation"), not to include any Advertiser
Software on such CD-ROMs (a "Pull"); provided however that, in the event of
a Pull, AOL shall deliver written notice thereof to Advertiser within five
(5) business days of such Pull. A Pull will remain in effect as long as any
Adverse User Situation remains, in AOL's reasonable discretion. If such
Adverse User Situation is not cured to AOL's reasonable satisfaction within
thirty (30) days from such notice, then AOL's obligations hereunder shall
terminate, and Advertiser shall not be obligated to make any further
payments under section 9(i) hereof.
7. Distribution Requirements. End-users who install the Advertiser Software
-------------------------
distributed pursuant to this will be prompted to send an electronic
registration to Advertiser the first time they attempt to use the Advertiser
Software via the end-user system on which the Advertiser Software is
installed. During such electronic registration, Advertiser shall create a
process by which such end-user will be identified as a user obtained through
the 4.0 CD-ROMs distributed by AOL hereunder. AOL agrees not to interfere
with, obfuscate, remove or alter any of the automatic installation
mechanisms, electronic registration mechanisms, or patent, copyright or
other proprietary rights notices included in the Advertiser Software
provided by Advertiser to AOL. AOL's obligations under this Section 7 shall
be contingent upon Advertiser's delivery of Advertiser Software that has
been quality assurance tested in accordance with Section 5 hereof.
8. Installation and Support. Advertiser shall be solely responsible for
------------------------
providing Customers with installation, maintenance and technical integration
support with respect to the Advertiser Software. AOL shall notify Advertiser
as soon as possible of AOL's receipt of any customer requests for support or
assistance with respect to the Advertiser Software.
9. Payments. In connection with AOL's obligations hereunder, Advertiser shall
--------
pay to AOL the following:
(i) [***]
---
(ii) [***]
---
----------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
16
10. Auditing Rights. Advertiser will maintain complete, clear and accurate
records of all expenses, revenues and fees in connection with the
performance of this Insertion Order Agreement, including reports which
indicate the number of customers acquired as a result of the distribution of
the Advertiser Software by AOL, and the number of such customers which
become Commerce Customers . For the sole purpose of ensuring compliance
with Section 9(ii) of this Insertion Order Agreement, AOL (or its
representative) will have the right to conduct a reasonable and necessary
inspection of portions of the books and records of Advertiser which are
relevant to Advertiser's performance pursuant to this Insertion Order
Agreement. Any such audit may be conducted after twenty (20) business days
prior written notice to Advertiser. AOL shall bear the expense of any audit
conducted pursuant to this Section 9 unless such audit shows an error in
AOL's favor amounting to a deficiency to AOL in excess of five percent (5%)
of the actual amounts paid and/or payable to AOL hereunder, in which event
Advertiser shall bear the reasonable expenses of the audit. Advertiser
shall pay AOL the amount of any deficiency discovered by AOL within thirty
(30) days after receipt of notice thereof from AOL. This provision shall
survive the termination or expiration of this Insertion Order Agreement for
an additional three year period.
17
EXHIBIT F
---------
[***]
----------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
18
