EXECUTION COPY
CONTENT PROVIDER AGREEMENT
This agreement (the "AGREEMENT"), dated as of September 8th, 1999 (the
"EFFECTIVE DATE"), by and between Entertainment Boulevard, Inc. a Nevada
corporation having a principal place of business at 0000 Xxx Xxx Xxxxxx,
Xxxxx 000, Xxxxxx Xxx Xxx, XX 00000 ("PROVIDER") and SERVICECO, LLC, a
Delaware limited liability company doing business as Road Runner, having a
principal place of business at 00000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000 ("ROAD RUNNER").
WHEREAS, Road Runner has entered into agreements with certain third
party service affiliates ("SERVICE AFFILIATES") for the provision of a
co-branded on-line broadband IP-based service comprised of content and
applications (the "ROAD RUNNER SERVICE").
WHEREAS, Provider creates and distributes certain programming content
and services, part or all of which is delivered via web sites located on the
World Wide Web, currently at the addresses ("URLs") set forth on EXHIBIT A
hereto (the "PROVIDER WEB SITES"); and
WHEREAS, the parties wish to enter into an agreement for the
distribution and promotion by Road Runner of certain of the Provider content
as part of the Road Runner Service, on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, the receipt and sufficiency of which are hereby
acknowledged, Provider and Road Runner agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
1.1. "BROADBAND PROGRAMMING" shall mean Content optimized for high
speed bandwidth as set forth in the Producer's Guide.
1.2. "CATEGORY" shall mean the subject matter of broadly-related
content designated by a button which leads to a group of Primary
Channels as further described on EXHIBIT D.
1.3. "CATEGORY WELCOME SCREEN" shall mean the promotions and/or
editorials which provide a topical description of the Content available
within a Category, as well as other relevant third party content,
promotions and/or editorials determined by Road Runner.
1.4. "CATEGORY WELCOME SCREEN HIGHLIGHT" shall mean the portion of the
Provider Promotional Materials contained in the Category Welcome Screen.
1.5. "CO-BRANDED AREA" shall mean the on-line area comprised of the
Road Runner Interface and the Co-Branded Content which has been
referenced or uploaded by Road Runner. The Co-Branded Area is
accessible as specified in EXHIBIT D.
1.6. "CO-BRANDED CONTENT" shall mean Content other than advertising
which is created, operated, modified, updated and maintained by
Provider, in accordance with the parameters set forth in EXHIBIT B
hereto, and made accessible at all times to Road Runner for inclusion in
the Co-Branded Area.
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CONFIDENTIAL ROAD RUNNER
1.7. "CONTENT" shall mean all works of authorship in any form including
but not limited to video, slides, text, scripts, photographs, art,
illustrations, animation, graphics, interface designs, images, music,
sound effects, lyrics, narration, advertising and other audio, visual,
audiovisual and streaming media works.
1.8. "CONFIDENTIAL INFORMATION" shall mean any information in any form
including but not limited to oral, written, graphic or electromagnetic
forms, which the disclosing party desires to protect against
unrestricted disclosure or use, and is designated as proprietary or
confidential in the following manner: (i) if in writing or other
tangible form, shall be conspicuously labeled as "confidential" or
"proprietary" at the time of delivery; (ii) if oral, shall be identified
as "confidential" or "proprietary" prior to disclosure, and after
disclosure shall be reduced to writing or other tangible form that is
labeled as described in the preceding clause (i) and delivered to the
receiving party no later than 30 days after such disclosure. Without
limiting the generality of the foregoing, (x) the Confidential
Information of Road Runner shall include all End User Information and
the terms of this Agreement, and (y) the Confidential Information of
Provider shall include all information regarding Provider's marketing
strategies, prospective marketing campaigns and programming and content
information. Confidential Information shall not include information
which (i) is or becomes generally known to the public through no act or
omission of the Receiving Party (as defined in SECTION 12.1); (ii) was
in the Receiving Party's possession prior to the disclosure hereunder
without an obligation of confidentiality, (iii) is disclosed to the
Receiving Party by a third party not under an obligation of
confidentiality, or (iv) was independently developed by the Receiving
Party.
1.9. "END USER" shall mean a subscriber of the Road Runner Service.
1.10. "MARKS" shall mean the trademarks, trade names, service marks,
designs, characters, logos and other indicia of origin of Provider and
Road Runner, respectively, as set forth on EXHIBIT A.
1.11. "PRIMARY CHANNEL" shall mean a specified grouping of related
Content, within a Category, that is provided by Road Runner content
providers, including Provider, as specified on EXHIBIT D.
1.12. "PRIMARY CHANNEL HIGHLIGHT" shall mean the portion of the Provider
Promotional Materials which appears on the End User's screen while
viewing the Primary Channel.
1.13. "PRODUCER'S GUIDE" shall mean the technical guidelines that Road
Runner provides Provider, as such guidelines may change from time to
time.
1.14. "PROVIDER HIGHLIGHT" shall mean, individually and/or collectively,
the Primary Channel Highlight, Category Welcome Screen Highlight, and
the Welcome Screen Highlight.
1.15. "PROVIDER MATERIALS" shall mean, collectively, the Co-Branded
Content, the Provider Web Site, the Provider Promotional Materials and
Provider's Marks.
1.16. "PROVIDER NAME/LOGO" shall mean the name and/or logo of Provider,
as set forth in Exhibit A.
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1.17. "PROVIDER PROMOTIONAL MATERIALS" shall mean information provided
by Provider to Road Runner relating to and/or derived from, as
applicable, Provider, the Co-Branded Area, Provider Highlights and other
on-line promotional Materials.
1.18. "ROAD RUNNER INTERFACE" shall mean the Road Runner proprietary
graphical interface displayed along the margins of an End User's screen
while accessing the Road Runner Service and includes, without
limitation, the navigational bar and channel look and feel.
1.19. "TERM" shall have the meaning set forth in SECTION 11.1.
1.20. "WELCOME SCREEN" shall mean the window on the home page of the
Road Runner Service in which Provider Promotional Materials may be
displayed by Road Runner in accordance with this Agreement.
1.21. "WELCOME SCREEN HIGHLIGHT" shall mean the portion of the Provider
Promotional Materials which appears on the End User's screen while
viewing the Welcome Screen.
2. OBLIGATIONS OF PROVIDER. Throughout the Term, Provider shall
provide and manage the Co-Branded Content and the Provider Web Sites, at
its own expense, as follows:
2.1. CREATION OF CO-BRANDED CONTENT. Provider shall create and make
available to Road Runner the Co-Branded Content in accordance with
the Producer's Guide and EXHIBIT B. Provider shall use
commercially reasonable efforts to incorporate the best Provider
Content available into the Co-Branded Content. Provider shall
comply with any guidelines for Content that Road Runner provides
generally to its content providers. The Co-Branded Content shall
not include advertising.
2.1.1. BROADBAND PROGRAMMING. It is the intention of the parties
that all or part of the Co-Branded Content will be
comprised of Broadband Programming, and Provider will use
commercially reasonable efforts, in consultation with Road
Runner, to develop Broadband Programming for the
Co-Branded Content. To the extent that Provider creates,
or has created, Broadband Programming within the subject
matter of the Primary Channel, Provider will use
commercially reasonable efforts to include all such
Broadband Programming in the Co-Branded Content, which
shall be no less than those required in EXHIBIT B.
2.1.2. LINKS. The Co-Branded Content may include links solely to
one or more Provider Web Sites.
2.1.3. When technically feasible, Road Runner intends to
implement a method for End Users who have linked from the
Road Runner Service to a Provider Web Site to return
easily to the Road Runner Service. Provider agrees to
reasonably cooperate with Road Runner in these efforts.
2.2. MANAGEMENT AND UPDATES OF CO-BRANDED CONTENT. Throughout the
Term, Provider shall manage, review, edit, update and otherwise
maintain the Co-Branded Content, in a
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timely and professional manner and in accordance with the
frequency, formatting and other specifications set forth in
EXHIBIT B and the Producer's Guide.
2.3. PROVIDER PROMOTIONAL MATERIALS. Provider acknowledges that Road
Runner intends to promote the Co-Branded Content and the Provider
Web Site in the Primary Channel, as well as in other areas
throughout the Road Runner Service, as specified in EXHIBIT D.
Provider shall regularly provide Road Runner with Provider
Promotional Materials at no charge and in quantities at least as
frequently as specified in EXHIBIT B, and in accordance with
EXHIBIT C and with the Producer's Guide, it being understood that
Road Runner shall have the right to use such Provider Promotional
Materials with the frequency and in the places within the Road
Runner Service as Road Runner, in its sole discretion,
determines, except as otherwise specified in EXHIBIT D. Provider
acknowledges that a portion of the Primary Channel Highlight
positions is intended to include highlight positions for the
insertion by Service Affiliates of their content providers'
promotional materials, and that Road Runner does not control the
use of such promotional materials. Accordingly, it is understood
and agreed that the provisions of Exhibit D shall not be
interpreted to require that Provider Promotional Materials be
displayed, within the Primary Channel or otherwise, as frequently
as the promotional materials of any Service Affiliate content
provider.
2.4. AVAILABILITY OF CONTENT. Provider agrees to make the Co-Branded
Content and Provider Promotional Materials available at all times
to Road Runner for access by Road Runner's software retrieval
system, except for scheduled downtimes for Provider's servers.
2.5. SUPPORT SERVICES. Provider shall respond fully, promptly and
professionally to questions, complaints and requests for
assistance received by End Users via electronic mail, public
posting areas and other means of delivery or transmission
regarding the Co-Branded Content and the Provider Web Site.
Provider shall provide Road Runner and any Road Runner help desk
contractor with a telephone or beeper number where Provider can be
reached during normal business hours 9 a.m. to 6 p.m. Eastern
Standard Time, and will respond to any support request within
three (3) business hours; provided that Road Runner agrees to use
the beeper number for emergency use only. To the extent that
Provider has on-line customer support accessible to End Users from
one or more of the Provider Web Sites, Provider shall provide such
access from the Co-Branded Area to the same extent such support is
given to any other end users of the Provider Web Sites.
2.6. END USER INFORMATION. Provider agrees to include links in the
Co-Branded Content and the Provider Web Site to Provider's privacy
policy which, at a minimum, shall provide End Users with the right
to "opt out" of the disclosure by Provider to third parties of any
personally identifiable information collected by Provider (except
as necessary for the use of the Co-Branded Content or the Provider
Site). Provider shall honor any "opt out" request of an End User
in accordance with the foregoing. Further, Provider shall not
provide End User names, screen names, addresses or other
identifying information, including without limitation any
navigational information obtained by Provider through access to an
I/PRO account (or equivalent tracking system), if any, as specified
in EXHIBIT D ("END USER INFORMATION") to any third party in a
manner which identifies End Users as subscribers to the Road
Runner Service.
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2.7. LOCATION. Provider shall design, develop and operate the
Co-Branded Content at and from its location set forth on EXHIBIT A
and, to enable Road Runner to meet internal technical
requirements, shall provide Road Runner with thirty (30) days
written notice prior to changing such location.
3. OBLIGATIONS AND RIGHTS OF ROAD RUNNER.
3.1. DISTRIBUTION OF CONTENT.
3.1.1. Throughout the Term, except as otherwise provided in this
Agreement, Road Runner shall include the Co-Branded
Content in its entirety (upon collection by the Road
Runner software retrieval system) in the Co-Branded Area
and distribute the same to Service Affiliates for
distribution to End Users.
3.1.2. QUALITY CONTROL.
3.1.2.1. Provider agrees that the Provider Materials
shall not contain (i) pornographic material,
(ii) Content or links to third party Content
which may result in a third party claim against
or civil or criminal liability to Road Runner
or one or more Service Affiliates, (iii) Content
that, in the reasonable opinion of Road Runner,
may constitute libel, defamation, infringement
or otherwise violate the privacy, publicity or
other rights of a third party, or (iv)
advertisements for tobacco or alcohol, get rich
quick schemes, or products or services involving
deceptive marketing practices, or gambling. In
addition, Provider agrees that it shall use
commercially reasonable efforts not to provide
to Road Runner Content that contains
adult-themed material which is contrary to the
written rules and guidelines provided by Road
Runner to Provider which may be updated,
revised, supplemented, or amended from time to
time. Content which does not meet the
requirements set forth above will be referred to
herein as "Unacceptable Content".
3.1.2.2. While Road Runner does not intend, and does not
undertake, to monitor the Provider Materials, if
Road Runner at any time during the Term (i)
becomes aware of a breach or inaccuracy of any
representation or warranty set forth in SECTION
8, (ii) determines, in its sole discretion, that
any Content contained in the Provider Materials
constitutes Unacceptable Content, Road Runner
shall have the right, but not the obligation, to
immediately cease transmitting the relevant
Provider Materials and/or the relevant link(s)
to the Service Affiliate(s), or permit the
affected Service Affiliates to immediately cease
transmitting the same to its End Users, until
such time as Provider shall have demonstrated,
to Road Runner's satisfaction, that such breach
or inaccuracy has been cured, or the Content
creating the likelihood of a claim or liability
removed. Provider shall cooperate reasonably
with Road Runner with respect to the foregoing,
which cooperation may include deleting or
removing particular Content by Provider from the
Co-Branded Content or Provider Promotional
Materials upon Road Runner's request.
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3.1.2.3. The Provider will use commercially reasonable
efforts to avoid the existence of any viruses,
trap doors, hidden sequences, hot keys or time
bombs in the Provider Materials.
3.2. PROVIDER POSITIONING. Within the Road Runner Service, the
Provider Name/Logo will appear as specified in EXHIBIT D.
Provider acknowledges and agrees that (i) Road Runner may
determine in its sole discretion whether to use Provider's name
alone or in combination with Provider's logo as the Provider
Name/Logo, and that such determination shall not be considered a
factor in determining relative prominence, (ii) the actual
position on the Primary Channel shall not be considered a factor in
determining relative prominence, and (iii) the dimensions and
colors of the various content provider's logos, including
Provider's are not within the control of Road Runner and,
therefore, shall not be considered a factor in determining
relative prominence. The Co-Branded Content will be displayed
within the Road Runner Interface, which together will comprise the
Co-Branded Area and will be accessible by End Users as specified
in EXHIBIT D. Road Runner reserves the right to make changes to
the Road Runner Interface at its sole discretion.
3.3. ON-LINE PROMOTION. Road Runner will provide Provider with the
on-line promotions described in EXHIBIT D.
3.4. ROAD RUNNER RESOURCES. Road Runner will make
available to Provider certain proprietary methods
and/or tools that (i) will enable Provider to preview
the Co-Branded Area, and (ii) are necessary for
Provider to format and make available to Road Runner
the Co-Branded Content and the Provider Promotional
Materials, and all modifications and updates thereto,
in a manner designed to enable automated harvesting,
uploading and distribution of the Co-Branded Content
and the Provider Promotional Materials as contemplated
hereby without reformatting by Road Runner (as the
same may be modified, updated, supplemented or
replaced, the "ROAD RUNNER RESOURCES").
3.5. ROAD RUNNER SERVICE. Provider acknowledges that in order to
maintain a desirable End User experience, Road Runner shall have
the right to modify the navigational model of the Road Runner
Service and the Road Runner Interface from time to time.
4. LICENSES.
4.1. PROVIDER LICENSES.
4.1.1. PROVIDER MATERIALS. Provider hereby grants to Road Runner
a worldwide, non-exclusive, royalty-free license during
the Term to: (i) download the Co-Branded Content for
inclusion in the Co-Branded Area; (ii) reproduce, cache,
store on its servers, distribute, display, perform, stream
and transmit the Co-Branded Content (including without
limitation all Content and links contained therein) as
part of the Co-Branded Area included in the Road Runner
Service; (iii) reproduce, cache, store on its servers,
distribute, display, perform, stream and transmit the
Provider Materials, or any portion thereof, in connection
with the advertising, marketing and promotion (on-line or
otherwise, including without limitation in connection with
screen shots of the Road Runner Service in
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television commercials) of the Road Runner Service; (iv)
link to the Provider Web Sites via the links contained in
the Co-Branded Content within the Co-Branded Area; (v)
sublicense to End Users the rights to print and download
portions of the Co-Branded Content and the Provider Web
Site (linked to via the Co-Branded Area) for their own
personal uses, without the right of redistribution, and
(vi) make one copy of the Co-Branded Content and the
Provider Promotional Materials for backup or archival
purposes. Road Runner will have the right in its
reasonable discretion to edit and reformat any Provider
Materials for use within the Road Runner Service or for
use in any off-line promotions, in accordance with
Provider's Usage guidelines; provided that if Provider
objects to any such use, Provider shall have the right to
request that Road Runner cease such use, and Road Runner
agrees to comply with any such written request within two
(2) days of receipt thereof.
4.1.2. PROVIDER MARKS. Provider hereby grants Road Runner a
royalty-free, non-exclusive, worldwide license to use
Provider's Marks, during the Term, in accordance with
Provider's usage guidelines set forth on EXHIBIT E, in
connection with the advertising, marketing, promotion
(on-line and otherwise) and distribution of the Road
Runner Service, the Co-Branded Area and the Provider
Promotional Materials. Such license shall include the
right to use the Provider Name/Logo as (i) the links from
the Co-Branded Area to the Provider Web Site and (ii) the
launching point into the Co-Branded Area. Provider will
retain all goodwill and all other rights thereto, and Road
Runner will obtain no goodwill or any other rights thereto
as a result of the use of the Provider Marks.
4.1.3. RIGHT TO SUBLICENSE. Road Runner shall have the right to
sublicense the rights granted in SECTIONS 4.1.1 AND 4.1.2
to each Service Affiliate. Upon request by Provider, Road
Runner agrees to reasonably cooperate with Provider to
determine whether a particular Road Runner Affiliate is in
compliance with any such sublicense.
4.2. ROAD RUNNER LICENSES.
4.2.1. ROAD RUNNER RESOURCES. Road Runner hereby grants Provider
a non-exclusive, nontransferable royalty-free license
during the Term to use the Road Runner Resources solely to
format and make available to Road Runner the Co-Branded
Content and Provider Promotional Materials. Provider may
make one copy of the Road Runner Resources for backup or
archival purposes.
4.2.2. ROAD RUNNER MARKS. Road Runner hereby grants Provider a
royalty-free, non-exclusive, non-transferable royalty-free
license to use the Marks designated by Road Runner from
time to time during the Term, all in accordance with Road
Runner's usage guidelines communicated to Provider in
writing with respect thereto, solely as necessary to
advertise, market and promote (on-line and otherwise) the
Co-Branded Content and Provider Web Site as part of the
Road Runner Service as provided in EXHIBIT D; provided
that all uses of such Marks shall require the prior
written consent of Road Runner. Road Runner will retain
all goodwill and all other rights thereto, and Provider
will obtain no goodwill or any other rights thereto as a
result of the use of the Road Runner Marks.
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4.2.3. SUBLICENSES. Provider shall not sublicense any of the
rights set forth in this SECTION 4.2 without the prior
written permission of Road Runner.
5. OWNERSHIP. Provider shall retain all right, title and interest in
and to the Provider Materials and the Provider Marks. As among Road
Runner, the Service Affiliates, and Provider, Road Runner shall own all
right, title and interest in the Road Runner Resources, the Road Runner
Marks, and the Road Runner Service, subject to Provider's ownership of
all right, title and interest in the Provider Materials contained in the
Road Runner Service. Except for the Provider Materials, Road Runner
shall own anything developed under this Agreement. Provider shall not
decompile, disassemble, reverse-assemble, analyze or otherwise examine
the Road Runner Resources for reverse engineering.
6. ADDITIONAL FEATURES. The parties acknowledge and agree that (i)
retail sales will not be conducted via the Co-Branded Area other than as
provided for in Exhibit D, and the Provider Web Sites are and will
remain primarily informational and entertainment programming, and not
transaction, based, and (ii) this Agreement does not address the
exploitation, and it is impossible to anticipate the introduction or
development, of enhanced distribution features such as the transmission
of pay-per-view and/or streaming events.
6.1. RETAIL/TRANSACTIONAL ON-LINE SERVICE. Provider shall not conduct
any transactional activities other than as provided for in Exhibit
D within the Co-Branded Area without Road Runner's prior written
approval.
6.2. ENHANCED DISTRIBUTION FEATURES. In the event that Provider wishes
to include in the Co-Branded Area or the Provider Web Sites
programming such as pay-per-view, streaming or other events that
would exploit enhanced distribution features, the parties shall
negotiate in good faith the terms and conditions, including fees,
applicable to the distribution thereof.
7. ADVERTISING.
7.1. GENERAL. The parties will conduct on-line and off-line
advertising activities as specified in EXHIBIT D.
7.2. ADVERTISING. The Road Runner Service will contain advertising
avails for the sale and placement of advertising and/or third
party promotional materials (collectively, "Advertising") by Road
Runner and Service Affiliates (collectively, the "Road Runner
Parties"), including but not limited to one or more designated
spaces within the Road Runner Interface contained within the
Co-Branded Area (such space, the "Co-Branded Ad Avail"). The
parties agree that Road Runner shall have the right to sell and
place, and to permit its Service Affiliates to sell and place, all
such Advertising, including Advertising within the Co-Branded Ad
Avail as further specified in EXHIBIT D.
7.3. MARKET INFORMATION. Subject to applicable law and Road Runner's
privacy policies in effect from time to time, Road Runner will
share with Provider aggregate usage information related
specifically to the Co-Branded Area when the Road Runner usage
tracking system is successfully tested and implemented, and
Provider will share relevant
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market information regarding the Co-Branded Content and the
Provider Web Site with Road Runner. Road Runner also may, in its
discretion, share relevant general market research with respect to
the Road Runner Service.
8. REPRESENTATIONS AND WARRANTIES.
8.1. MUTUAL WARRANTIES. Each party represents and warrants to the
other that it has the right to enter into and fully perform its
obligations under this Agreement and to grant the rights granted
hereunder, and that the foregoing shall not constitute a breach or
violation of any other agreement entered into by such party.
8.2. WARRANTY DISCLAIMERS. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS
SECTION 8, NEITHER PARTY MAKES ANY WARRANTIES CONCERNING THE ROAD
RUNNER SERVICE, THE CATEGORIES, THE PRIMARY CHANNEL, THE CONTENT,
OR THE ROAD RUNNER RESOURCES, EXPRESS OR IMPLIED. EACH PARTY
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT
TO THE ROAD RUNNER SERVICE, THE CATEGORIES, THE PRIMARY CHANNEL,
THE CONTENT, THE ROAD RUNNER RESOURCES, RELATED SERVICES, AND ANY
AND ALL CONTENT AND TOOLS AND RELATED DELIVERIES PROVIDED BY ROAD
RUNNER OR PROVIDER IN CONNECTION WITH THIS AGREEMENT. ROAD RUNNER
DOES NOT GUARANTEE THAT END USERS' USE OF THE ROAD RUNNER SERVICE,
INCLUDING WITHOUT LIMITATION THE CO-BRANDED AREA, WILL BE
UNINTERRUPTED OR ERROR-FREE.
8.3. YEAR 2000. Provider represents and warrants to Road Runner that
to the best of its knowledge as of the Effective Date the Provider
Materials provided to Road Runner under this Agreement are Year
0000 Xxxxxxxxx. Xxxx Runner represents and warrants to Provider
that to the best of its knowledge as of the Effective Date the
Road Runner Service is Year 2000 Compliant. For purposes of this
Year 2000 Compliance warranty, each of the Provider Materials and
Road Runner Service shall include, but is not limited to, any and
all software, hardware, microcode (including, but not limited to,
source code, object code, and machine readable code), firmware,
operating systems, applications, programs, or databases. "Year
200 Compliant" shall mean that the Provider Materials or the Road
Runner Service, as the case may be, accurately processes
date/time data, including, but not limited to, recording,
storing, calculating, functioning, operating, sorting, comparing,
and presenting calendar dates (including leap year dates) falling
before, on, during, and after (and, if applicable, spans of time
including) January 1, 2000. "Year 2000 Compliant" shall also
mean that the Provider Materials or the Road Runner Service, as
the case may be, will process any information dependent on or
relating to such dates without loss of functionality, data
integrity, and performance. In the event of any breach of the
foregoing warranty, each party's entire liability, and the other
party's sole and exclusive remedy shall be for the breaching
party to use commercially reasonable efforts to repair or replace
the defective Provider Materials or Road Runner Service, as the
case may be. Each party shall notify the other party as soon as
reasonably practical of any information of which it becomes aware
that the Provider Materials or the Road Runner Service, as the
case may be, is not or will not be Year 2000 Compliant
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where such non-compliance is likely to disrupt the delivery of
Provider Materials to Road Runner or the operation of the Road
Runner Service.
9. INDEMNITY.
9.1. MUTUAL. Each party (the "INDEMNIFYING PARTY") hereby indemnifies
and holds harmless the other party and such other party's
affiliates (each, an "INDEMNIFIED PARTY") from and against all
third party claims, costs, liabilities, judgments, expenses and
damages (including amounts paid in settlement and reasonable
attorneys' fees) (collectively, "LOSSES") arising out of or in
connection with the Indemnifying Party's breach of any covenants,
warranties or representations made herein.
9.2. BY PROVIDER. Provider hereby indemnifies and holds harmless Road
Runner from and against all Losses incurred by Road Runner and by
its Service Affiliates as a result of any claim, demand or action
against Road Runner or any Service Affiliate based on, relating
to or arising out of: (A) any claim that the Provider Materials
(i) infringe any patent, copyright, trademark or trade secret
right of a third party, (ii) contain any viruses, trap doors,
hidden sequences, hot keys or time bombs, or (iii) violate any
applicable law or regulation, any third party's right of privacy
or publicity, or (iv) contain any libelous, defamatory, obscene
or indecent content or materials otherwise objectionable to a
person with reasonable sensibilities; or (B) the sale of any
products by or through the Co-Branded Area, the Provider Sites or
the CO Site as set forth on Exhibit D, including without
limitation any claims brought by Xxxxxxxx.xxx arising from or
related to the activities contemplated by Exhibit D.
9.3. CONDITIONS. The foregoing indemnities shall be contingent upon
(i) the Indemnified Party giving prompt written notice to the
Indemnifying Party of any claim, demand or action for which
indemnity is sought; and (ii) the Indemnified Party fully
cooperating in the defense or settlement of any such claim, demand
or action, at the expense of the Indemnifying Party. The
Indemnifying Party shall obtain the prior written agreement of the
Indemnified Party to any non-monetary settlement or proposal of
settlement.
10. LIMITATION OF LIABILITY.
10.1. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR THE SERVICE
AFFILIATES BE LIABLE TO THE OTHER PARTY (WHETHER IN CONTRACT OR IN
TORT) FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE USE OR INABILITY TO
USE THE ROAD RUNNER SERVICE OR PROVIDER MATERIALS, SUCH AS, BUT
NOT LIMITED TO, LOSS OF REVENUE, ANTICIPATED PROFITS, DATA,
CONTENT OR BUSINESS, OR DAMAGES RESULTING FROM LOSS,
MISAPPROPRIATION OR UNAUTHORIZED ACCESS TO OR MODIFICATION OF THE
ROAD RUNNER SERVICE OR CONTENT CONTAINED THEREIN, WHETHER CAUSED
BY FAILURE OF PERFORMANCE BY SERVICE AFFILIATES, OR THEFT OR
DESTRUCTION OF THE ROAD RUNNER SERVICE OR ROAD RUNNER RESOURCES.
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10.2. EXCEPT FOR DAMAGES PAYABLE WITH RESPECT TO THE INDEMNIFICATION
OBLIGATIONS SET FORTH IN SECTION 9, THE LIABILITY OF EITHER PARTY,
OR ANY OF THE SERVICE AFFILIATES FOR BREACH OF THIS AGREEMENT OR
OTHERWISE ARISING OUT OF OR ARISING OUT OF ANY CLAIM RELATING TO
THIS AGREEMENT (INCLUDING TORT CLAIMS) SHALL NOT EXCEED FIVE
THOUSAND DOLLARS ($5,000).
10.3. IN NO EVENT SHALL ROAD RUNNER BE LIABLE FOR OR IN CONNECTION
WITH, AND AS BETWEEN ROAD RUNNER AND PROVIDER, PROVIDER SHALL BE
SOLELY LIABLE FOR: (i) ANY AND ALL PRODUCTS OFFERED OR SOLD ON OR
VIA THE CO-BRANDED AREA, THE PROVIDER SITES OR AS SET FORTH IN
EXHIBIT D; OR (ii) THE PROVISION, OFFER OR USE BY ANY THIRD PARTY
OF ANY PRODUCT OFFERED OR SOLD ON OR VIA THE CO-BRANDED AREA, THE
PROVIDER SITES OR AS SET FORTH IN EXHIBIT D.
11. TERM AND TERMINATION.
11.1. TERM. The Term of this Agreement (the "TERM") shall commence on
the date hereof and, unless terminated earlier in accordance with
SECTION 11.2 below, shall continue until the first anniversary
hereof. Thereafter, this Agreement may be renewed upon mutual
written agreement of the parties.
11.2. TERMINATION FOR BREACH. Either party may terminate this
Agreement if the other party materially breaches any of its
representations, warranties, obligations or agreements hereunder,
and fails to cure such breach within thirty (30) days following
receipt of written notice thereof. Road Runner shall have the right
to terminate this Agreement immediately upon notice to Provider in
the event that Road Runner has advised Provider in writing that
Provider is in default of this Agreement by reason of providing
Unacceptable Content in the Provider Materials on at least three
separate occasions within any ninety (90) day period.
11.3. RETURN OF INFORMATION. Upon the expiration or termination of
this Agreement, each party shall promptly return all information,
documents, manuals and other materials belonging to the other party
except as otherwise provided in this Agreement, including, without
limitation, all Confidential Information.
11.4. EFFECT OF TERMINATION. Upon termination or expiration of this
Agreement for any reason, the licenses granted herein shall
terminate, Road Runner shall, and shall require the Service
Affiliates to, promptly remove or delete all Provider Materials
from their respective servers and from the Road Runner Service.
Provider shall promptly return the Road Runner Resources and all
copies thereof to Road Runner.
12. CONFIDENTIALITY.
12.1. CONFIDENTIAL TREATMENT. Each party acknowledges that in performing
under this Agreement, it may gain access to Confidential
Information belonging to the other party and that such Confidential
Information may contain trade secrets of such party. Accordingly,
when a party (the "RECEIVING PARTY") receives Confidential
Information from another party (the "OWNING PARTY") the Receiving
Party shall, and shall obligate
Page 11
its employees and agents to, both during the term of this
Agreement and for a period of five (5) years after expiration or
termination thereof, (i) maintain the Confidential Information
received from the Owning Party in strict confidence, (ii) not
disclose the Confidential Information received from the Owning
Party to a third party without the Owning Party's prior written
approval, and (iii) not, directly or indirectly, use the
Confidential Information received from the Owning Party for any
purpose other than for the purposes permitted by this Agreement.
The Receiving Party shall disclose the Confidential Information
received from the Owning Party only to those employees and agents
who need to know the same, and each party undertakes to ensure that
such employees and agents are bound by confidentiality and
nondisclosure obligations with respect to such Confidential
Information that are no less strict than the confidentiality and
nondisclosure obligations set forth in this SECTION 12. Each party
shall take reasonable measures to protect the Confidential
Information of the other party, which measures shall not be less
than the measures taken by such party to protect its own
confidential and proprietary information. All Confidential
Information shall remain the sole property of the Owning Party.
13. GENERAL.
13.1. PUBLIC ANNOUNCEMENTS. Except as required by applicable law,
neither party shall make any public announcement or press release
regarding the existence or contents of this Agreement or the other
party's performance under this Agreement without the prior written
approval of the other party.
13.2. NO AGENCY OR JOINT VENTURE. The Parties agree and acknowledge
that the relationship of the parties is in the nature of an
independent contractor. This Agreement shall not be deemed to
create a partnership or joint venture and neither party is the
other's agent, partner, employee, or representative.
13.3. FORCE MAJEURE. Neither party shall be deemed in default of this
Agreement to the extent that performance of its obligations or
attempts to cure any breach are delayed or prevented by reason
of any act of God, fire, natural disaster, accident, or act of
government, telecommunications failure, shortages of materials or
supplies or any other cause beyond the control of such party;
provided that such party gives the other party written notice
thereof promptly upon discovery thereof and, in any event, within
twenty-four (24) hours of discovery thereof, and uses its best
efforts to cure the delay.
13.4. SEVERABILITY. Should any provision of this Agreement be held to
be void, invalid or unenforceable, such provision shall be enforced
to the maximum extent permissible, and the remaining provisions of
this Agreement shall remain in full force and effect.
13.5. NOTICES. Each party shall promptly inform the other of (i) any
information related to the Co-Branded Content, Provider Web Site or
the Road Runner Service that could reasonably lead to a claim,
demand, or liability of or against the other party by any
third-party; and (ii) any changes in the Provider Web Sites which
would substantially change the Provider Content in any area to
which Road Runner has linked from the Co-Branded Area.
Page 12
13.6. NO WAIVER. The failure of either party to partially or fully
exercise any right or the waiver by either party of any breach
shall not prevent a subsequent exercise of such right or be deemed
a waiver of any subsequent breach of the same or any other term of
this Agreement.
13.7. NO ASSIGNMENT. Neither party may assign this Agreement or any of
its rights or obligations under this Agreement, whether by
operation of law or otherwise, without the prior written consent of
the other party, except that either party may assign this Agreement
to a party that purchases all or substantially all of its assets.
Any attempted assignment or other transfer in violation of the
foregoing shall be void and of no force or effect.
13.8. BINDING AGREEMENT. This Agreement shall be fully binding upon,
inure to the benefit of and be enforceable by the parties hereto
and their permitted successors and assigns.
13.9. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed duly given
(i) if delivered personally, when received, (ii) if
transmitted by facsimile, upon the generation by the
transmitting facsimile machine of a confirmation that the
entire document has been successfully transmitted, (iii) if
sent by recognized overnight courier service, on the business
day following the date of deposit with such courier service,
or (iv) if sent by registered mail, postage prepaid, return
receipt requested, on the third business day following the
date of deposit in the United States mail. All such notices
shall be addressed to a party at the following address:
If to Road Runner:
Xxxx Xxxxxx, VP Programming
Road Runner
00000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000
Telephone: 703/000-0000
Telecopy: 703/345-3555
With copies to:
Xxxxx Kalench
Road Runner
00000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000
Telephone: 703/000-0000
Telecopy: 703/345-3555
Xxx Xxxxxxxxx
Road Runner
00000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000
Telephone: 703/000-0000
Telecopy: 703/345-3555
Page 13
If to Provider, to:
Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx, Xxxx, Xxxxxxxx & Xxxxxxxx
Penthouse, 0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Xxxxx, CEO
Entertainment Boulevard, Inc.
0000 Xxx Xxx Xxxxxx Xxxxx 000
Xxxxxx Xxx Xxx, XX 00000
or to such other address or facsimile number as a party shall
notify the other in accordance with this SECTION 13.9.
13.10. ENTIRE AGREEMENT. This Agreement and the exhibits hereto set
forth the entire agreement between the parties regarding the
subject matter hereof and supersede in their entirety all prior
written or oral negotiations, understandings and agreements between
the parties concerning the subject matter hereof. Any amendment or
modification of this Agreement must be in writing and signed by
both parties. In the event of a conflict between the Producer's
Guide and the terms and conditions of this Agreement, the terms and
conditions of this Agreement will govern.
13.11. SURVIVAL. The provisions of Articles 5, 9, 10, 12, and 13 and
Sections 11.3 and 11.4 shall survive the expiration or earlier
termination of this Agreement.
13.12. GOVERNING LAW. This Agreement shall be governed by the laws of
the Commonwealth of Virginia, exclusive of the choice of law rules
thereof.
13.13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of
which, when taken together, shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the Effective Date.
SERVICECO, LLC ENTERTAINMENT BOULEVARD, INC.
Signatory: /s/ Xxxx Xxxxxx Signatory: /s/ Xxxxxxx Xxxxx
--------------- -----------------
Name: Xxxx Xxxxxx Name: Xxxxxxx Xxxxx
----------- -------------
Title: VP Programming Title: CEO
-------------- ---
Page 14
EXECUTION COPY
EXHIBIT A
URL(S) OF PROVIDER WEB SITE(S): xxx.xxxxxxxxxxxxxxxxx.xxx
LINKS TO xxx.xxxxxxxx.xxx WILL BE PERMITTED IF THE LINKS ARE EMBEDDED WITHIN
THE PROVIDER POP-UP WINDOWS THAT ARE PART OF THE CO-BRANDED CONTENT AND IF
THE LINKS GO DIRECTLY TO THE TRANSACTION THAT CORRESPONDS WITH THE CONTENT
DISPLAYED ON THE POP-UP WINDOW.
PROVIDER MARKS:
Entertainment Boulevard Inc.
XxxxxxxxxxxxxXxxx.xxx
XxxxxxxxxxxxxXxxx.xxx Music
XxxxxxxxxxxxxXxxx.xxx Movies
PROVIDER NAME AND LOGO:
Entertainment Boulevard Inc.
XxxxxxxxxxxxxXxxx.xxx
XxxxxxxxxxxxxXxxx.xxx Music
XxxxxxxxxxxxxXxxx.xxx Movies
All logos will be provided electronically.
ROAD RUNNER MARKS: To be designated by Road Runner from time to time.
The Exhibits attached to this Agreement substantively represent the
functionality, navigation, content and advertising components of Road
Runner 2.0. Such functionality, navigation, content and advertising components
of Road Runner Service may be modified by Road Runner, from time to time, in
accordance with the terms and conditions of this Agreement. In addition,
stylistically, these specifications may change as deemed necessary by Road
Runner, and Road Runner will make all reasonable efforts - including
documentation of changes - to ensure that the presentation of the Provider
Materials, as described in the Exhibits, will not be materially altered.
Page 15
EXECUTION COPY
EXHIBIT B
CO-BRANDED CONTENT DESCRIPTION AND
UPDATE SCHEDULE FOR CO-BRANDED CONTENT AND PROVIDER PROMOTIONAL MATERIALS
1. OVERVIEW
The Co-Branded Area shall be an interactive content-based resource offering a
variety of information as outlined below, consisting of Provider Co-Branded
Content residing within the Road Runner Interface. All Co-Branded Content
included in the Co-Branded Area will be distributed to Service Affiliates for
high speed delivery to End Users. Co-Branded Content will include portions of
the Provider Web Sites, stories related to Provider Highlights, links out to
the Provider Web Sites, and assets enhanced specifically for delivery of
Broadband Programming. The Co-Branded Content should reasonably leverage the
Broadband Programming capabilities of the Road Runner Service. Where
possible, the Co-Branded Content should be both nationally and
internationally relevant. Road Runner will upload the Co-Branded Content to
the Co-Branded Area. Provider agrees to consider in its creation and
selection of Content for incorporation in the Co-Branded Content factors
which include (i) End Users' evolving demand for particular types of articles
and programming, as instructed by Road Runner, (ii) infrastructure
capabilities of the Road Runner Service, as communicated by Road Runner to
Provider from time to time, and (iii) fully exploiting and showcasing the
technical capabilities of Road Runner's Broadband Programming delivery system.
2. CO-BRANDED CONTENT DESCRIPTION & PARAMETERS
2.1. The maximum length for streaming video is ten (10) minutes,
unless otherwise approved in writing by Road Runner prior to such streaming.
Road Runner will have the right to discontinue distribution of any video that
violates this maximum without express written permission.
2.2. At all times, Provider shall make available to Road Runner a
minimum of three (3) pages of Co-Branded Content for inclusion in the
Co-Branded Area.
2.3. At all times, the Co-Branded Content shall contain at least one
(1) Broadband Programming element.
2.4. At any given time, the Co-Branded Content shall be comprised of
no less than sixty percent (60%) Content. No more than forty percent (40%) of
the Co-Branded Content shall be comprised of links to the Provider Web Site.
The Exhibits attached to this Agreement substantively represent the
functionality, navigation, content and advertising components of Road
Runner 2.0. Such functionality, navigation, content and advertising components
of Road Runner Service may be modified by Road Runner, from time to time, in
accordance with the terms and conditions of this Agreement. In addition,
stylistically, these specifications may change as deemed necessary by Road
Runner, and Road Runner will make all reasonable efforts - including
documentation of changes - to ensure that the presentation of the Provider
Materials, as described in the Exhibits, will not be materially altered.
Page 16
2.5. At least one (1) time per calendar quarter, Provider shall use
best efforts to include in the Co-Branded Content at least one (1) Broadband
Programming element that Provider creates solely for use by Road Runner in
the geographic territory in which the Road Runner Service is available (the
"Territory"). During the Term, Provider agrees not to grant any right or
license to any party other than Road Runner in the Territory with respect to
such Broadband Programming element.
2.6 The Co-Branded Area will be launched within forty-five (45) days
after the Effective Date and will include but not be limited to
the following:
- Approximately 100 music videos
per week which may be viewed by End Users in the Co-Branded Area
via a video/audio player that is part of a Pop-Up Window (as
defined below).
- Links to the Top 20 videos for the then-current week and
featured videos in each genre.
The Co-Branded Content may also include links to xxxxxxxx.xxx (the "CO Site"),
provided that the links to the CO Site are embedded within the pop-up windows
(each, a "Pop-Up Window") that are part of the Co-Branded Content and provided
further that the links take the End User directly to the "artist" page (i.e., a
page which includes Content related to the artist performing in the applicable
video) that corresponds with the content displayed on the Pop-Up Window. When
technically implemented, the links to the CO Site will take the End User
directly to the transaction page on the CO Site.
Included in a Pop-Up Window will be links to the applicable music genre pages of
the XxxxxxxxxxxxxXxxx.xxx Web site.
- Provider will also supply as Co-Branded Content a select number
of movie trailers, including, all of the "coming soon" and "now
playing" trailers that are available on the Provider Site. The
trailers will launch and be viewable by End Users in a
co-branded pop up player similar to the music video player.
The Co-Branded Content shall also include links to the CO Site
and to the Provider Site where the back catalog of trailers is
located.
2.7 The Co-Branded Content may include links which will permit an
End User to link from the Co-Branded Area to Pop-Up Windows in which
advertising avails may be placed by Provider. The links and the advertising
avails to which the links provide access, described in the preceding sentence
are deemed to be Co-Branded Content hereunder.
3. CO-BRANDED CONTENT AND PROVIDER PROMOTIONAL MATERIALS UPDATE SCHEDULE
The Exhibits attached to this Agreement substantively represent the
functionality, navigation, content and advertising components of Road
Runner 2.0. Such functionality, navigation, content and advertising components
of Road Runner Service may be modified by Road Runner, from time to time, in
accordance with the terms and conditions of this Agreement. In addition,
stylistically, these specifications may change as deemed necessary by Road
Runner, and Road Runner will make all reasonable efforts - including
documentation of changes - to ensure that the presentation of the Provider
Materials, as described in the Exhibits, will not be materially altered.
Page 17
The Co-Branded Content and Provider Promotional Materials include a
combination of evergreen and timely resources which will require updates
based on the timetable below:
REQUIRED MINIMUM
Channel Lineup Update Frequency
-------------- ----------------
ENTERTAINMENT 1X/DAY
The Exhibits attached to this Agreement substantively represent the
functionality, navigation, content and advertising components of Road Runner
2.0. Such functionality, navigation, content and advertising components of
Road Runner Service may be modified by Road Runner, from time to time, in
accordance with the terms and conditions of this Agreement. In addition,
stylistically, these specifications may change as deemed necessary by Road
Runner, and Road Runner will make all reasonable efforts - including
documentation of changes - to ensure that the presentation of the Provider
Materials, as described in the Exhibits, will not be materially altered.
Page 18
EXECUTION COPY
EXHIBIT C
PROVIDER PROMOTIONAL MATERIALS
1. OVERVIEW
Provider will be required to submit Provider Promotional Materials for
all Provider Highlights (the Primary Channel Highlights, Category Welcome
Screen Highlights and Welcome Screen Highlights, if any). These Provider
Promotional Materials are intended to promote and feature Provider Content in
the Road Runner Service and to drive traffic to the Co-Branded Area. EXHIBIT
B sets forth the frequency with which Provider must update the Provider
Promotional Materials to be included in the Provider Highlights.
The Producer's Guide sets forth technical requirements for all Provider
Promotional Materials.
The Exhibits attached to this Agreement substantively represent the
functionality, navigation, content and advertising components of Road Runner
2.0. Such functionality, navigation, content and advertising components of
Road Runner Service may be modified by Road Runner, from time to time, in
accordance with the terms and conditions of this Agreement. In addition,
stylistically, these specifications may change as deemed necessary by Road
Runner, and Road Runner will make all reasonable efforts - including
documentation of changes - to ensure that the presentation of the Provider
Materials, as described in the Exhibits, will not be materially altered.
Page 19
EXECUTION COPY
EXHIBIT D
PROVIDER POSITIONING AND MARKETING
1. PRIMARY CHANNEL: ENTERTAINMENT: MUSIC
ENTERTAINMENT: MOVIES
A. NAME/LOGO PLACEMENT
The Provider Name/Logo will appear as follows:
Entertainment Boulevard Inc.
XxxxxxxxxxxxxXxxx.xxx
XxxxxxxxxxxxxXxxx.xxx Music
XxxxxxxxxxxxxXxxx.xxx Movies
All logos will be provided electronically.
B. CO-BRANDED AREA
The Co-Branded Area will be accessible by End Users by mouse clicking on
the Provider Name/Logo located (a) within the Primary Channel and (ii) within
one or more Provider Highlights.
Provider acknowledges and agrees that the Co-Branded Content in the
Co-Branded Area is intended to be comprised solely of the Content described
in EXHIBIT B. Therefore, unless otherwise approved in writing by Road Runner,
Provider shall not include any advertisements in the Co-Branded Content.
ADVERTISING. Provider agrees to share fifty percent (50%) of the gross
revenues received by Provider in connection with advertising placed within
the Provider's Content that is accessible by Road Runner subscribers via the
Co-Branded Area, less all agency commissions (not to exceed fifteen percent
(15%) of the applicable fees), rebates, refunds, credits, and taxes other
than those imposed on net income.
ECOMMERCE. As part of the Co-Branded Content, End Users will be offered
the opportunity to purchase products through the CO Site with whom Provider
has a valid, existing contract as follows:
The Exhibits attached to this Agreement substantively represent the
functionality, navigation, content and advertising components of Road Runner
2.0. Such functionality, navigation, content and advertising components of
Road Runner Service may be modified by Road Runner, from time to time, in
accordance with the terms and conditions of this Agreement. In addition,
stylistically, these specifications may change as deemed necessary by Road
Runner, and Road Runner will make all reasonable efforts - including
documentation of changes - to ensure that the presentation of the Provider
Materials, as described in the Exhibits, will not be materially altered.
Page 20
(a) LINKS. The Co-Branded Content will include a button to link to
the CO Site (the "CO Links").
(b) ORDER PROCESSING. Checkout ("CO"), with which Provider has an
arrangement, will receive and process product orders placed by
End Users who use the CO Links to get from the Co-Branded Area
to the CO Site. CO reserves the right to reject orders that do
not comply with any requirements that CO periodically may
establish. CO will be responsible, at its sole expense, for all
aspects of order processing and fulfillment, including without
limitation: preparing order forms; processing payments,
cancellations, and returns; and handling customer service. CO
will track sales made to End Users who purchase products using
the CO Links from the Co-Branded Area to the CO Site, and will
send Provider reports summarizing this sales activity. Provider
will send reports summarizing End User sales activity to Road
Runner.
(c) CUSTOMER DATA. CO shall own and retain all right, title and
interest in all names, addresses and other identifying
information of users of XxxxxXxx.xxx.
(d) REFERRAL FEES. Provider will pay to Road Runner a referral fee
for each sale of a Qualifying Product to a third party. A
"Qualifying Product Sale" shall be a product purchased by a
customer who has: (i) linked to the CO Site from the
Co-Branded Area to the Co Site, (ii) used CO's automated
ordering system, (iii) accepted delivery of the product at the
shipping destination, and (iv) remitted full payment to CO.
Products that are added to a customer's Shopping Cart after the
customer has re-entered the CO Site (other than through a CO
Link from the Co-Branded Area), shall not be Qualifying
Products even if the customer previously followed a link from
the Co-Branded Area to the CO Site.
(e) FEE SCHEDULE. Provider shall pay Road Runner, as a referral fee
for each Qualifying Product, a fee equal to four percent (4%)
of the sale price for such product listed in CO's catalog
(each, a "Referral Fee").
(f) POLICIES AND PRICING. Customers who buy products through CO
will be deemed to be CO's customers. Accordingly, all CO rules,
policies, and operating procedures concerning customer orders,
customer service, and product sales will apply to those
customers. CO will determine the prices to be charged for
products sold under this program in accordance with CO's
pricing policies. Product prices and availability may vary from
time to time.
(g) PROMOTIONS AND INCENTIVES. During the Term of the Agreement, CO
will provide special promotions to Provider users at least six
(6) times per year. Provider
The Exhibits attached to this Agreement substantively represent the
functionality, navigation, content and advertising components of Road Runner
2.0. Such functionality, navigation, content and advertising components of
Road Runner Service may be modified by Road Runner, from time to time, in
accordance with the terms and conditions of this Agreement. In addition,
stylistically, these specifications may change as deemed necessary by Road
Runner, and Road Runner will make all reasonable efforts - including
documentation of changes - to ensure that the presentation of the Provider
Materials, as described in the Exhibits, will not be materially altered.
Page 21
will extend these promotions to its Road Runner End Users upon
agreement from Road Runner.
AUDIT RIGHTS. Road Runner shall have the right to examine during normal
business hours the books and records of Provider to verify the fees due
pursuant to this Exhibit D, subject to a seven (7) day notice requirement.
Such examination shall not occur more than once per calendar quarter unless
the parties agree to more frequent examinations. Such examination shall be at
the expense of Road Runner unless the examination results show that 95% or
less of fees owing for the examined period were actually paid, in which event
Provider shall bear all expenses of the examination. Such examinations shall
be limited to fees payable during the then-current and immediately preceding
calendar years.
PAYMENT. Within thirty (30) days following the end of each calendar
quarter during the Term and for the calendar quarter ending after the end of
the Term, Provider shall remit to Road Runner the Referral Fees payable under
this Exhibit D, Section B for such quarter together with a statement setting
forth the total amount of Gross Revenue and the calculation thereof; PROVIDED,
HOWEVER, that if the total Referral Fees for any quarter are less than $100,
Provider shall be permitted to withhold payment of such amount until the
following quarter or such time as the Referral Fees due and payable are at
least $100 (but Provider shall still submit a statement for such quarter
reflecting that amounts due are less than $100). Upon the expiration of the
Term, Provider shall be required to pay all unpaid fees, whether or not such
fees aggregate to at least $100. All payments shall be made without credit,
setoff or reduction with the following exception: If a Qualifying Product is
returned by the customer to CO, the corresponding fee will be deducted from
the next payment and if there is no subsequent payment, a xxxx for the fee
will be sent. All amounts not paid when due shall bear interest at the rate
of 18% per annum or, if lower, the maximum rate permitted under applicable
law. Payments of all fees shall be sent to Road Runner as follows: Road
Runner Power Media, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxx Xxxxx
ON-LINE PROMOTION.
Provider Promotional Materials will be included in Highlights as specified
below.
A. PRIMARY CHANNEL HIGHLIGHTS. Road Runner shall promote the Provider
Promotional Materials in the Primary Channel Highlights of the Entertainment
Category no less frequently than other content provider promotional
materials for the purpose of promoting and featuring programming within the
Road Runner Service.
B. CATEGORY WELCOME SCREEN HIGHLIGHTS. Road Runner shall promote the
Provider Promotional Materials in the Category Welcome Screen Highlights of
the Entertainment Category, and the Provider name, logo and link to the
Co-Branded Area will be included in the Category Welcome Screen Highlight for
a minimum frequency of fifteen (15) minutes in duration at least ten (10)
times per week.
C. WELCOME SCREEN HIGHLIGHTS. Provider Promotional Materials will be
placed in the Welcome Screen Highlights for fifteen (15) minutes in duration
at least five (5) times per week.
The Exhibits attached to this Agreement substantively represent the
functionality, navigation, content and advertising components of Road Runner
2.0. Such functionality, navigation, content and advertising components of
Road Runner Service may be modified by Road Runner, from time to time, in
accordance with the terms and conditions of this Agreement. In addition,
stylistically, these specifications may change as deemed necessary by Road
Runner, and Road Runner will make all reasonable efforts - including
documentation of changes - to ensure that the presentation of the Provider
Materials, as described in the Exhibits, will not be materially altered.
Page 22
D. OTHER ON-LINE PROMOTION.
Road Runner may promote the Co-Branded Content and Provider Web Site,
using the Provider Promotional Materials, in other channels and other areas
of the Road Runner Service. In addition, Road Runner intends to conduct
additional on-line promotions intended to increase awareness of and drive
on-line traffic to the Co-Branded Area and Provider Web Site, such as
notifying Service Affiliate subscribers of events or highlighting new
features. Except as indicated below or as the parties may agree in advance
and in writing with respect to particular Provider Promotional Materials or
other Provider Content, and subject to SECTION 4.1.1 of the Agreement, the
nature and frequency of such promotional activities, and the use of Provider
Promotional Materials and other Provider Content for promotional purposes,
shall be within Road Runner's sole discretion.
Road Runner shall (i) include Provider's name, logo, and link to the
Co-Branded Area in one (1) original programming/promotional opportunity (e.g.
the holiday gift guide or winter getaway guide) per calendar quarter; and
(ii) when ready, include Provider Promotional Materials in the Road Runner
electronic newsletter at least one (1) time per calendar quarter.
3. OFF-LINE MARKETING AND PROMOTION
A. TV COMMERCIAL. During the Term, Road Runner will feature Provider in
at least one (1) cable television commercial of thirty (30) seconds in
length, and will distribute such commercial to Road Runner's Service
Affiliates which may distribute such commercials on their cable television
networks. Provider will be the only content partner featured in such
commercial.
B. BOUNTY PROGRAM. When available, Road Runner will offer Provider the
option to participate in a Road Runner bounty program, which provides content
providers with compensation for generating leads that result in new End
Users. Provider shall be paid Road Runner's then-current affiliate bounty
rate in accordance to the then-current program rules provided by Road Runner.
C. RETENTION MARKETING CAMPAIGNS. When available, Road Runner will offer
Provider the opportunity to participate in retention marketing campaigns,
such as rewards programs.
4. MARKET RESEARCH
Road Runner shall provide Provider with an individual I/PRO account (or
equivalent tracking system) so that Provider may track access to and usage of
the Co-Branded Area. Provider acknowledges that in order to utilize such
account tracking system, Provider may be subject to certain usage
requirements of the account or tracking system or be subject to obligations
imposed by Road Runner.
5. All Road Runner promotional obligations described in this EXHIBIT D are
subject to Provider meeting the content update and technical requirements
specified on EXHIBITS B AND C.
The Exhibits attached to this Agreement substantively represent the
functionality, navigation, content and advertising components of Road Runner
2.0. Such functionality, navigation, content and advertising components of
Road Runner Service may be modified by Road Runner, from time to time, in
accordance with the terms and conditions of this Agreement. In addition,
stylistically, these specifications may change as deemed necessary by Road
Runner, and Road Runner will make all reasonable efforts - including
documentation of changes - to ensure that the presentation of the Provider
Materials, as described in the Exhibits, will not be materially altered.
Page 23
