EXHIBIT 10.10.1
CONFIDENTIAL
SECOND ADDENDUM TO INTERACTIVE SERVICES AGREEMENT
This Second Addendum to Interactive Services Agreement (this "Second
Addendum"), effective as of February 20, 2000 (the "Second Addendum Effective
Date"), is made and entered into by and between America Online, Inc. ("AOL"), a
Delaware corporation with its principal offices at 00000 XXX Xxx, Xxxxxx,
Xxxxxxxx 00000 and iVillage, Inc. ("Interactive Content Provider" or "ICP"), a
Delaware corporation, with its principal offices at 000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. Defined terms that are used but not defined herein
shall be as defined in the Interactive Services Agreement between AOL and ICP
effective as of August 31, 1998, as amended by an Amendment to Interactive
Services Agreement effective as of August 27, 1999 (collectively, the
"Agreement"). The meanings given to terms that are defined in this Second
Addendum and which are not defined in the Agreement shall apply in the
Agreement.
INTRODUCTION
A. AOL and ICP are parties to that certain Addendum to Interactive
Services Agreement effective as of October 20, 1999 (the "First Addendum"),
which provides for certain temporary promotion by AOL of an astrology site on
the Internet controlled by ICP.
B. The First Addendum is expiring as of the date hereof, and the
Parties wish to enter into this Second Addendum.
It is therefore agreed as follows:
1. Expiration of First Addendum. ICP shall pay to AOL, within five (5)
days of the date on which both parties have signed this Second Addendum, the
amount of Twenty-Two Thousand Five Hundred Dollars ($22,500) in full
satisfaction of the Additional Carriage Fee (as that term is defined in the
First Addendum). The Additional Impressions Target (as that term is defined in
the First Addendum) shall be deemed fully satisfied.
2. Customized Site.
(a) ICP shall establish a version of its Internet site and
Content, currently located at URL:xxxx://xxx.xxxxxxxxx.xxx (the "Standard
Site"), which is customized for distribution through the AOL Network in
accordance with this Second Addendum (the "Customized Site"). For the duration
of the Second Addendum Term (as defined in Section 6 below), the Customized Site
shall be considered Licensed Content, an ICP Internet Site and an ICP Site under
the Agreement, and all terms and conditions of the Agreement applicable to
Licensed Content, an ICP Internet Site and ICP Site shall apply equally to the
Customize Site. The definition of ICP Internet Site shall be modified to add the
following phrase at the end of the current definition: "and (iii) the Customized
Site (as that term is defined in the Second Addendum hereto)." In addition, the
following terms shall apply (in the event that the terms below conflict with
terms of the Agreement, the terms below shall control with respect to the
Customized Site):
(i) Content: The Content of the Customized Site shall be as
set forth in Exhibit A hereto, and references in the Agreement to Exhibit A
thereto shall be deemed to refer instead to Exhibit A hereto with respect to the
Customized Site. ICP shall inform AOL of relevant
search terms and terminology associated with popular areas and functionality
within the Customized Site for AOL's promotional and Content integration
purposes.
(ii) Customization/Co-Branding: ICP shall customize the
Customized Site as follows: (a) ICP shall customize and co-brand the Customized
Site for distribution over the AOL Network using AOL's design guideline
templates and co-branding requirements, including by displaying on each page of
the Customized Site framing (e.g., headers, footers, and eyebrow) of size and
type determined by AOL and which contain branding for AOL and ICP as determined
by AOL, and links to the AOL Service (it being expressly understood that such
links shall not link directly to an interactive site devoted to horoscopes or
other content primarily targeted towards women (e.g., Oxygen, xxxxx.xxx), other
than a site over which ICP or AOL exercises control). A diagram of AOL's current
co-branding requirements as applicable to the Customized Site is attached hereto
as Exhibit B. ICP shall make any changes to the customization and/or co-branding
of the Customized Site and Content thereon to conform to the standard
requirements of the AOL Service or otherwise reasonably requested by AOL during
the Second Addendum Term, provided that any such change shall not increase the
portion of the Customized Site that is covered by framing by more than 10% over
the portion covered by the framing shown on Exhibit B; (b) upon AOL's request,
within the Customized Site, ICP shall use AOL's tools and technology for all
community and communications utilities and functionality (including, without
limitation, chat, message boards, web page community services such as AOL
Hometown, IP telephony, email, address book, and instant messaging) and
navigation services (e.g., search and directory products, classified listings,
white pages and yellow pages); (c) each page of the Customized Site shall be
hosted by ICP under a domain name co-branded with AOL (e.g., measurement of
traffic changes such that ICP could not receive credit for traffic to the
Customized Site under the domain name xxx.xxxxxxxx.xxx, AOL will work with ICP
to structure the domain name so that ICP can receive such credit under the
then-prevailing standard.
(b) Site and Content Preparation. ICP shall achieve Site and
Content Preparation for the Customized Site by May 15, 2000. "Site and Content
Preparation" shall mean that ICP shall have completed all necessary production
work for the Customized Site in order for the Interim Placements (as defined
below) and Additional Placements (as defined below) to launch on the AOL Network
as contemplated hereunder. In the event ICP has not achieved Site and Content
Preparation by May 15, 2000, then in addition to any other remedies available,
AOL shall be entitled to the following remedies: (a) the Interim Impressions
Target (as defined below) or Additional Impressions Target (as defined below),
as applicable, shall be reduced on a pro rate basis; and (b) AOL shall be
entitled to remove (or refrain from commencing) the Interim Placements or
Additional Placements, as applicable, and all impressions to the relevant
advertising inventory during such period shall count towards the Interim
Impressions Target or Additional Impressions Target, as applicable. ICP shall
remain liable for all payments hereunder notwithstanding AOL's failure to
display the Interim Placements or Additional Placements, as applicable, or the
pro ration of the Interim Impressions Target or Additional Impressions Target,
as applicable. However, if ICP is delayed in achieving Site and Content
Preparation due to a failure by AOL to perform its obligations under this Second
Addendum and ICP notifies AOL in writing of such failure and the resulting
delay, then the Second Addendum Term shall be extended by the amount of time of
ICP's delay solely attributable to such failure by AOL, with no additional
payments due to AOL by ICP as consideration for such extension.
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3. Promotions During Interim Period. Beginning on February 20,
2000 and continuing until the Astrology Launch Date (as defined in Section 4
below) (the "Interim Period"), the following shall apply:
(a) Interim Placements on Lifestyles Channel and Interests
Channel. ICP shall receive the following interim placements (the "Interim
Placements"), all of which are subject to the "Changes to AOL Service" section
of Exhibit C of the Agreement: (i) ICP shall receive carriage on the Horoscopes
screen of the AOL Service Lifestyles channel (or any successor thereto) as
follows: ICP shall receive (x) a permanent textual promotion and (y) a permanent
textual placement in a listbox, each of which shall link to the main page of the
Standard Site, until such time as Site and Content Preparation of the Customized
Site has been completed and ICP has so notified AOL. Thereafter, the textual
promotion and listbox discussed herein shall link to the main page of the
Customized Site (or other pages as mutually agreed). ICP shall have the right to
change the Content of the promotions described in this Section 3(a)(i) no more
than twice per month, so long as ICP provides the new Content to AOL at least
seven (7) days in advance of the date on which ICP desires the requested change
to take effect; (ii) ICP shall receive carriage on the Astrology screen of the
AOL Service Interests channel (or any successor thereto) as follows: ICP shall
receive a permanent, non-branded AOL-approved "text and graphic" promotion
linking to the Standard Site, until such time as Site and Content Preparation of
the Customized Site has been completed and ICP has so notified AOL. Thereafter,
the "text and graphic" promotion discussed herein shall link to the main page of
the Customized Site (or other pages as mutually agreed). This promotion may be
changed to another AOL-approved promotion once per month. Except to the extent
expressly described herein, the exact form, placement, and nature of the Interim
Placements shall be determined by AOL in its reasonable editorial discretion.
Each Interim Placement shall promote only the Content to which it links.
(b) Interim Impressions. AOL shall provide ICP with at least
One Million Six Hundred Twelve Thousand Five Hundred (1,612,500) Impressions
(the "Interim Impressions Target") from the Interim Placements during each month
of the Interim Period. For purposes of this Second Addendum, multiple placements
within a single page shall each count as a separate Impression (e.g., such that
for a page view of a page containing two placements, AOL shall receive credit
for two Impressions). Any shortfall in the Interim Impressions Target at the end
of a month will not be deemed a breach of this Second Addendum by AOL; instead,
the amount of such shortfall will be added to the Interim Impressions Target for
the following month. In the event that there is (or will be in AOL's reasonable
judgment) a shortfall in Impressions as of the end of the Interim Period, then
as ICP's sole remedy, at AOL's option: (x) AOL shall, from time to time
(including, at AOL's option, during an extension of the term of this Second
Addendum), provide ICP with the remaining Impressions in the form of advertising
space within the AOL Network of comparable value to the undelivered Impressions
(as reasonably determined by AOL), (y) during the time following the Astrology
Launch Date (as defined in Section 4 below), any impressions over the Additional
Impressions Target (as defined in Section 4 below), shall count towards
compensation for the shortfall from the Interim Period, or (z) some combination
thereof.
(c) Interim Carriage Fee. ICP shall pay AOL Twenty-Two
Thousand Five Hundred Dollars ($22,500) on the first day of each month during
the Interim Period (provided, however, that ICP's payments for the months of
February, March, and April 2000, shall be made no later than five (5) days
following the date on which both parties have executed this Second Addendum), as
consideration for the Interim Placements.
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4. Promotion from Expanded Astrology Area of AOL Service.
(a) Additional Placements. Upon the date that AOL commercially
launches an expanded astrology area on the AOL Service (such date to be referred
to as the "Astrology Launch Date," and such area to be referred to as the
"Expanded Astrology Area"), which AOL currently intends (but does not guarantee)
will occur by May 15, 2000, AOL shall provide to ICP the additional placements
set forth in Exhibit C hereto (the "Additional Placements") provided that (i)
ICP has paid AOL all sums then due and owing to AOL hereunder, including without
limitation the payment required by Section 4(d)(i) below, and (ii) the
placements in Exhibit C are conditioned on ICP's provision of the Content
described in the programming plan set forth in Exhibit A hereto (the
"Programming Plan"). Except to the extent expressly described herein, the exact
form, placement and nature of the Additional Placements shall be determined by
AOL in its reasonable editorial discretion. Each Additional Placement shall link
to the Customized Site and shall promote only the Content to which it links. If
the Expanded Astrology Area is not ready for launch on or prior to June 15,
2000, then AOL shall provide ICP, as its sole remedy, with the carriage provided
for in Section 3 above, and the terms of that section shall control, with the
exception that the Interim Period shall expire on July 1, 2000, and this Second
Addendum shall terminate simultaneously therewith.
(b) Amendment to Agreement. The following shall be added as
subpart (g) of Section 1.1 of the Agreement: "In addition to the anchor tenant
distribution provided for in this Section 1.1, AOL shall provide ICP with the
additional placements listed in Exhibit C to the Second Addendum hereto (the
"Additional Placements"), all on the Astrology area of the AOL Service, on the
terms and conditions set forth in the Second Addendum.
(c) Impressions. Beginning on the Astrology Launch Date, AOL
shall provide ICP with at least One Hundred Twenty-Eight Million Four Hundred
Eighty Thousand (128,480,000) Impressions (the "Additional Impressions Target"),
which may be generated from an ICP Presence on appropriate screens on the AOL
Network as AOL may determine in its sole discretion, provided that only screens
that contain a link to the Customized Site or to the Standard Site will count
towards the Additional Impressions Target. For purposes of this Second Addendum,
multiple placements within a single page shall each count as a separate
Impression (e.g., such that for a page view of a page containing two placements,
AOL shall receive credit for two Impressions). AOL will use commercially
reasonable efforts to distribute the Impressions provided for under this Section
4 reasonably evenly during the period from the Astrology Launch Date through the
end of the Second Addendum Term. Such distribution shall be considered on a
quarterly basis, taking into account the effects of factors which can reasonably
be considered to be outside AOL's control (e.g., including without limitation
seasonality and ramp-up of the Expanded Astrology Area). AOL's failure to
achieve such distribution shall not be considered a breach of this Second
Addendum. In the event that ICP does not make a timely payment as required by
Section 4(d) below, AOL shall be entitled to remove (or refrain from commencing)
the Additional Placements, and all Impressions to the relevant advertising
inventory during such period shall count towards the Additional Impressions
Target, and ICP shall remain liable for all payments hereunder notwithstanding
AOL's failure to display the Additional Placements. In the event that the
Additional Impressions Target is not met (or will not, in AOL's reasonable
judgment, be met) during the Second Addendum Term, then as ICP's sole remedy, at
AOL's option either (x) the Second Addendum Term shall be extended for up to
three (3) months without additional carriage fees payable by ICP, (y) AOL shall,
from time to time, provide ICP with the remaining Impressions in the form of
advertising space
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within the AOL Network of comparable value to the undelivered Impressions (as
reasonably determined by AOL), or (z) some combination thereof.
(d) Carriage Fee. ICP shall pay AOL, in consideration for the
Additional Placements, Two Million Eight Hundred Thousand Dollars ($2,800,000)
(the "Additional Carriage Fee"), payable as follows: (i) Seven Hundred Thousand
Dollars ($700,000) within five (5) days of AOL's notice to ICP of the
anticipated or Astrology Launch Date, provided, however, that ICP shall in no
event be entitled to the Additional Placements until such time as this payment
has been made; and (ii) Three Hundred Fifty Thousand Dollars ($350,000) per
quarter for six 6) quarters commencing on the date that is three (3) months
after the Astrology Launch Date.
5. ICP Programming. "ICP Programming" shall consist of Content provided
to AOL by ICP for distribution on the AOL Service other than on the Customized
Site (but which may also appear on the Customized Site). Paragraph 1 of Exhibit
A hereto sets forth the ICP Programming which ICP shall deliver during the
Second Addendum Term. All ICP Programming shall be deemed Licensed Content.
6. Term; Renewal; Expiration of Agreement. The term of this Second
Addendum shall expire two (2) years from the Astrology Launch Date, except as
expressly provided in Section 4(a) above (such term, together with any
extensions pursuant to this Second Addendum, to be referred to as the "Second
Addendum Term"). Should the Agreement expire or terminate prior to the
expiration or termination of this Second Addendum (including any extension
hereof), the terms of the Agreement still will continue to govern the
relationship between the parties with respect to the Customized Site as set
forth herein (but not with respect to the Online Areas or the existing ICP
Internet Site, except to the extent that terms of the Agreement survive the
termination thereof) until the end of the Second Addendum Term.
7. Order of Precedence. This Second Addendum is supplementary to and
modifies the Agreement. The terms of this Second Addendum supersedes provisions
in the Agreement only to the extent that the terms of this Second Addendum and
the Agreement expressly conflict. However, nothing in this Second Addendum
should be interpreted as invalidating the
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IN WITNESS WHEREOF, the Parties hereto have executed this Second
Addendum as of the date first written above.
AMERICA ONLINE, INC. iVILLAGE, INC.
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxx
------------------------------------- ---------------
Name: Xxxxxxxx X. Xxxxx Name: Xxxxx Xxxxx
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Title: Vice President, Business Affairs Title: Senior Vice President,
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Business and Legal Affairs
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EXHIBIT A
PROGRAMMING PLAN
1. ICP shall provide the following ICP Programming:
A. Long Daily Horoscopes (approximately 80 words no less than 70
words): ICP shall be responsible for updating and programming
the text field for that day's horoscope on a daily basis by
4:30 a.m. of each day EST. Each horoscope will be attributed
to ICP astrologer, Xxxxx Xxx, subject to AOL's approval of the
look and feel of such attribution.
B. Love Compatibility Tool: ICP shall provide a tool that
analyzes the romantic compatibility of two signs.
C. Coworker Compatibility Tool: ICP shall provide a tool
that analyzes the professional
compatibility of two signs.
D. Message from Astrologer: ICP shall be responsible for
updating and programming the text field for the message from
the astrologer on a regular basis to be mutually agreed upon.
2. The Customized Site shall consist of the following Content:
A. any page of the Customized Site linked to from the "Your
Sign" screens (which may be known by a different name) shall
contain:
o Personality Profiles (e.g., Sun Sign, Money, Career,
Romance, Travel, Fashion Fitness) for each sign
o Your Year Ahead Horoscopes
o Weekly Overview, Monthly Overview
B. any page of the Customized Site linked to from the "Learn
About Astrology" area (which may be known by a different
name) shall contain information on Astrology, including:
(i) Understanding Astrology, (ii) About Your Horoscope and
(iii) Astrology Glossary.
C. any page of the Customized Site linked to from the "Career &
Money Scopes" area (which may be known by a different name)
shall contain: (i) Weekly Business Scopes, (ii) Monthly Career
Scopes, (iii) Your Boss's Profile, (iv) Career Profiles, (v)
Money Profile, and (vi) results for the Co-Worker
Compatibility Tool.
D. any page of the Customized Site linked to from the "Love &
Compatibility" area (which may be known by a different name)
shall contain: (i) Love Sign (utility), (ii) Daily Love
Horoscopes, (iii) Do's & Don'ts of Seduction for each sign,
(iv) Date
A-1
Guide (utility), (v) Passion Sign (utility), and (vi) results
or the Love Compatibility Tool.
E. Subject to the terms and conditions of the Agreement, ICP may
provide a newsletter for AOL Members, provided that (i) all
links in the newsletter shall link directly to the Customized
Site, (ii) the Content of each newsletter is limited to the
subject matter of the ICP Programming and the Content of the
Customized Site as specified herein, and (iii) the Content of
each newsletter complies with all restrictions applicable to
the Customized Site under this Second Addendum and the
Agreement (e.g., including without limitation compliance with
AOL's then-standard Terms of Service).
3. AOL Members shall not be charged for the features described above. Any
premium services shall be clearly labeled as such and will be covered
under a related products area.
4. Target audience: Men and women interested in horoscopes.
5. Media types used in Customized Site: Text, charts, graphics, celebrity
photos.
6. Live events: Xxxxx Xxx will be available for regularly scheduled chats,
upon mutual agreement.
7. Content requiring daily or other regular updates: Daily Horoscope,
Daily Lovescopes, Weekly Career & Money Scopes, Week Ahead, Monthly
Career Scopes.
8. Publishing format for the Customized Site: HTML. No rainman will be
required of ICP.
9. Content to be explicitly excluded from the Customized Site: Free Email,
Stock Quotes, Weather, Calendar (other than horoscopes calendar),
Member Directory, Search.
A-2
