EXHIBIT 10.22
CONFIDENTIAL
INTERACTIVE MARKETING AGREEMENT
This Interactive Marketing Agreement (the "Agreement"), made and
entered into on September 1, 2000, but for all purposes of this Agreement deemed
to be effective as of October 1, 2000 (the "Effective Date"), is between America
Online, Inc. ("AOL"), a Delaware corporation, with offices at 00000 XXX Xxx,
Xxxxxx, Xxxxxxxx 00000, and 000-XXXXXXX.XXX, Inc. ("1-800-FLOWERS" or "MP"), a
New York corporation, with offices at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000.
AOL and 1-800-FLOWERS may be referred to individually as a "Party" and
collectively as the "Parties." The Parties expressly acknowledge and agree that
the Original IMAs have been terminated and are of no further force and effect.
INTRODUCTION
Each of AOL and 1-800-FLOWERS desires to enter into an interactive
marketing relationship whereby AOL shall promote and distribute interactive
sites referred to (and further defined) herein as the Affiliated 1-800-FLOWERS
Sites. This relationship is further described below and is subject to the terms
and conditions set forth in this Agreement. Defined terms used but not defined
in the body of the Agreement shall be as defined on Exhibit B attached hereto.
TERMS
1. PROMOTION, DISTRIBUTION AND MARKETING.
1.1. AOL PROMOTION OF AFFILIATED 1-800-FLOWERS SITES. AOL shall
provide 1-800-FLOWERS with the promotions for the Affiliated
1-800-FLOWERS Sites described on Exhibit A hereto, which
promotions the Parties shall mutually agree upon in writing on
or before September 8, 2000 or another date (prior to the
Effective Date) mutually agreed upon by the Parties, and
attach as Exhibit A. The Parties agree that such promotions
described in Exhibit A (the "Carriage Plan") will be designed
to support a goal (i.e., not an obligation) of [****] for
Year 1 of the Agreement, and the Parties also agree that
the Carriage Plans going forward under this Agreement shall
have the goal (i.e., not an obligation) of achieving at least
[****] during the Initial Term; provided that in any case the
Partiesexpressly acknowledge and agree that the ability to
reach such goals may be the result of factors within the
exclusive control of AOL (only to the extent of AOL's
obligations under the Agreement and otherwise within AOL's
exclusive control to promote and drive its users to the AOL
Properties), 1-800-FLOWERS and/or third parties; and provided,
further, that a failure to reach such goals is not a breach of
this Agreement by AOL or 1-800-FLOWERS. Subject to
1-800-FLOWERS' approval (which shall not be unreasonably
withheld), AOL shall have the right to fulfill its promotional
commitments with respect to any of the foregoing promotions by
providing 1-800-FLOWERS with comparable promotional placements
in appropriate alternative areas of the same AOL Properties;
PROVIDED, HOWEVER, that unless otherwise agreed upon by the
Parties, any such comparable promotional placements shall be
within the same Tier as the promotions for which such
comparable promotional placements are being substituted. In
addition, if AOL is unable to deliver any particular
promotion, AOL shall work with 1-800-FLOWERS to provide
1-800-FLOWERS, as its sole remedy, with a comparable
promotional placement (i.e., a placement which is not less
valuable, in terms of the applicable CPM, than the promotion
being replaced) within the same Tier (as described on Exhibit
A to this Agreement).
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
CONFIDENTIAL
AOL reserves the right to redesign or modify the organization, structure, "look
and feel," navigation and other elements of the AOL Network at any time. In the
event such modifications materially and adversely affect any specific promotion,
AOL shall work with 1-800-FLOWERS to provide 1-800-FLOWERS, as its sole remedy,
a comparable promotional placement in the same Tier as the promotion being
replaced. The promotions described on Exhibit A and any comparable promotions
provided herein shall be referred to as the "Promotions." On a periodic basis
[****], the Parties shall review and modify, as applicable, the promotional plan
for the Promotions in a continuing effort to have a current and effective
promotional plan. In addition, in order to expand 1-800-FLOWERS' exposure on the
AOL Network beyond the AOL-Controlled Areas, (i) AOL shall use commercially
reasonable efforts to assist 1-800-FLOWERS in establishing promotional,
marketing, advertising and/or distribution relationships with AOL's Content
providers to permit 1-800-FLOWERS to be the provider to or through such entities
of the Products described on Exhibit D hereto and (ii) the Parties shall work
together in good faith to approach other entities (e.g., those entities in which
AOL has an ownership interest) to promote, market and distribute the Products
set forth on Exhibit D through such entities (the activities in clauses (i) and
(ii) above, collectively, the "Promotional Activities"); PROVIDED, HOWEVER, that
1-800-FLOWERS shall have no obligation to enter into any such contractual
arrangement. With respect to the Promotional Activities that result in a
contractual relationship between 1-800-FLOWERS and any third party, AOL shall be
entitled to receive a negotiated percentage (as agreed upon in good faith by the
Parties) of the gross revenues (as defined in any such contract) and up-front
payments (if any) made pursuant to any such arrangement. 1-800-FLOWERS hereby
acknowledges and agrees that AOL does not guarantee that (x) any of the entities
to be approached under this Section 1.1 will agree to enter into a contractual
arrangement with 1-800-FLOWERS and/or (y) the terms and conditions of any such
contractual arrangement into which any such entity may agree to enter will
resemble in any respect the terms and conditions of this Agreement (including,
without limitation, the promotion and exclusivity provisions hereof).
1.2. IMPRESSIONS COMMITMENT. During the Term, AOL shall deliver
[****] Impressions set forth in the respective Carriage Plans
to 1-800-FLOWERS through the Promotions (the "Impressions
Commitment"); which Impressions shall be commensurate with the
[****] goals set forth in Section 1.1. The Parties expressly
acknowledge and agree that AOL has not made and will not
make any guarantees regarding click-throughs or the ability
to reach or exceed any Transaction Revenue goals or
thresholds. In the event that, by the end of any Year, AOL
does not reach the Annual Impressions Target for such Year as
set forth on Exhibit A hereto (a "Shortfall"), (i) such
Shortfall shall not be deemed a breach of the Agreement by
AOL, but instead shall be added to the Annual Impressions
Target for the subsequent Year and (ii) the Impressions
Commitment shall be increased (subject to the AOL Setoff
Right) by [****] Impressions (the "Shortfall Penalty") for
each Year in which any such Shortfall exists. With respect to
the Annual Impressions Targets specified on Exhibit A, AOL
shall not be obligated to provide Impressions in excess of any
Annual Impressions Target in any Year. In the event AOL
provides Impressions in excess of any Annual Impressions
Target in any Year during the Initial Term (the "Excess
Impressions"), AOL shall have the right to credit any such
Excess Impressions (the "AOL Setoff Right") against any future
Shortfall solely for purposes of determining the applicability
of any Shortfall Penalty (e.g., AOL would have the right to
credit [****] of Excess Impressions in Year 1 against a
Shortfall of [****] in Year 3 such that AOL would not be
required to pay any Shortfall Penalty due to such Year 3
Shortfall, and the remaining [****] Excess Impressions would
be available to credit against any Shortfall of up to [****]
Impressions in Year 4 solely for purposes of determining the
applicability of any Shortfall Penalty in Year 4); PROVIDED,
HOWEVER, that AOL will use commercially reasonable efforts to
deliver the Impressions in accordance with the target amounts
set forth on Exhibit A hereto.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
2
CONFIDENTIAL
In the event that 1-800-FLOWERS requests that AOL reduce its promotional
commitments hereunder in any Year of the Term, and as a result, AOL fails to
satisfy the Annual Impressions Target in such Year, then AOL shall not be
responsible for the delivery of such Shortfall, and the Impressions Commitment
shall not be increased by the Shortfall Penalty. Within thirty (30) days
following any Year of the Initial Term (other than the final Year thereof) in
which there is a Shortfall in Impressions, the Parties shall meet to discuss the
means by which AOL will attempt to rectify such Shortfall in the subsequent
Year. In the event there is a shortfall in Impressions as of the end of the
Initial Term (a "Final Shortfall"), AOL shall provide 1-800-FLOWERS (as
1-800-FLOWERS's sole remedy), during the greater of (x) the [****]month period
immediately following the expiration of the Initial Term or (y) the period in
which it would require AOL to deliver the Final Shortfall to 1-800-FLOWERS at a
rate not to exceed [****] per month (collectively, the "Make-Whole Period") and
as 1-800-FLOWERS' sole remedy, with comparable promotional placements for the
same number of Impressions (equal to the Final Shortfall) in the same Tiers on
the applicable AOL Properties (as mutually agreed upon by the Parties); PROVIDED
that AOL shall not deliver to 1-800-FLOWERS more than [****] Impressions of any
such Final Shortfall in any one (1) month of the Make-Whole Period, unless
otherwise agreed upon by the Parties.
1.3. CONTENT OF PROMOTIONS. The Promotions for 1-800-FLOWERS shall
link only to the Affiliated 1-800-FLOWERSSites and shall
promote only the Exclusive Products and any other Products
that 1-800-FLOWERS is permitted to offer on the Affiliated
1-800-FLOWERS Sites pursuant to the terms of this Agreement
[****]. The specific 1-800-FLOWERS Content to be contained
within the Promotions (including, without limitation,
advertising banners and contextual promotions) (the "Promo
Content") shall be determined by 1-800-FLOWERS, subject to
AOL's technical limitations, the terms of this Agreement and
AOL's then-applicable policies relating to advertising and
promotions. 1-800-FLOWERS and AOL shall work together to
develop a quarterly online marketing plan (which 1-800-FLOWERS
shall submit to AOL in advance of each quarter during the Term
for AOL's final review) with respect to the Affiliated
1-800-FLOWERS Sites. The Parties shall meet in person or by
telephone at least monthly to review operations and
performance hereunder, including a review of the Promo Content
to ensure that it is designed to maximize performance.
1-800-FLOWERS shall consistently update the Promo Content no
less than twice per month. Except to the extent expressly
described herein (e.g., the Promotions as described on Exhibit
A hereto), the specific form, placement, duration and nature
of the Promotions shall be as determined by AOL in its
reasonable editorial discretion (consistent with the editorial
composition of the applicable screens).
2. AFFILIATED 1-800-FLOWERS SITES.
2.1. CUSTOMIZED AFFILIATED 1-800-FLOWERS SITES. 1-800-FLOWERS shall
create, at its sole cost and expense, a customized Affiliated
1-800-FLOWERS Site for each of the AOL Properties, through
which 1-800-FLOWERS can promote, advertise, market and
complete transactions regarding the Products set forth on
Exhibit D hereto (which interactive sites collectively shall
be referred to herein as the "Affiliated 1-800-FLOWERS
Sites"), and warrants that it also shall implement, at its own
cost and expense, any appropriate infrastructure additions to
the Affiliated 1-800-FLOWERS Sites to support the projected
traffic growth on such Affiliated 1-800-FLOWERS Sites. Each
Affiliated 1-800-FLOWERS Site shall be customized to comply
with the co-branding requirements for the relevant AOL
Property, as set forth on Exhibit I hereto.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
3
CONFIDENTIAL
2.2. CONTENT. 1-800-FLOWERS shall make available through the
Affiliated 1-800-FLOWERS Sites the comprehensive offering of
Products and related Content (under "Brands" owned by
1-800-FLOWERS that are selected by 1-800-FLOWERS) described on
Exhibit D. Except as mutually agreed in writing by the Parties
and as otherwise permitted under Section 2.8.2(a)(iii) of this
Agreement, the Affiliated 1-800-FLOWERS Sites shall contain
only Content that is directly related to the Products listed
on Exhibit D and shall not contain any third-party products,
services, programming or other Content other than that within
the categories set forth on Exhibit D. All sales of Products
through the Affiliated 1-800-FLOWERS Sites shall be conducted
through a direct sales format; [****] without the prior
written consent of AOL. 1-800-FLOWERS shall review, delete,
edit, create, update and otherwise manage all Content
available on or through the Affiliated 1-800-FLOWERS Sites in
accordance with the terms of this Agreement.
2.3. PRODUCTION WORK. Except as agreed to in writing by the Parties
pursuant to Section 10 of Exhibit F hereto, 1-800-FLOWERS
shall be responsible for all production work associated with
the Affiliated 1-800-FLOWERS Sites, including all related
costs and expenses.
2.4. TECHNOLOGY. 1-800-FLOWERS shall use commercially reasonable
efforts (with the appropriate support from AOL) to conform its
promotion and sale of Products through the Affiliated
1-800-FLOWERS Sites 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 through the Affiliated 1-800-FLOWERS Sites). AOL
shall be entitled to require reasonable changes to the Content
(including, without limitation, the features or functionality)
within any linked pages of any Affiliated 1-800-FLOWERS Site
to the extent such Content shall, in AOL's good faith
judgment, adversely affect any operational aspect of the AOL
Network. AOL reserves the right to review and test any
Affiliated 1-800-FLOWERS Site from time to time to determine
whether the site is compatible with AOL's then-available
client and host software and the AOL Network.
2.5. PRODUCT OFFERING. During the Term and subject to Section 2.2
of this Agreement, 1-800-FLOWERS shall use commercially
reasonable efforts to ensure that the Affiliated 1-800-FLOWERS
Sites include substantially all of the Products and other
Content (including, without limitation, any features, offers,
contests, functionality or technology) that are then made
available by or on behalf of 1-800-FLOWERS through any
Additional 1-800-FLOWERS Channel; PROVIDED, HOWEVER, that (i)
such inclusion shall not be required where it is commercially
or technically impractical to either Party (i.e., inclusion
would cause either Party to incur substantial incremental
costs) or where such inclusion is prohibited by the terms of
(a) this Agreement or (b) another agreement (in full force and
effect as of July 1, 1999) to which 1-800-FLOWERS is a party,
(ii) the specific changes in scope, nature and/or offerings
required by such inclusion shall be subject to AOL's review
and approval, and to the terms of this Agreement, and (iii) in
the event that 1-800-FLOWERS makes a special offer on any
additional 1-800-FLOWERS Channel, then 1-800-FLOWERS shall use
commercially reasonable efforts to offer a comparable Special
Offer on the 1-800-FLOWERS Affiliated Sites.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
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CONFIDENTIAL
2.6. [****]TERMS. During the Term and subject to Section 2.5,
1-800-FLOWERS shall ensure that: (i) the [****] for the
Merchandise Value of the Products in any Affiliated
1-800-FLOWERS Site [****] the [****] for the Merchandise Value
of the Products or substantially similar Products offered by
or on behalf of 1-800-FLOWERS through any Additional
1-800-FLOWERS Channel; and (ii) the terms and conditions
related to Products offered on or through the Affiliated
1-800-FLOWERS Sites (when taken as a whole) are [****] to the
terms and conditions for the Products or substantially similar
Products offered by or on behalf of 1-800-FLOWERS on or
through any Additional 1-800-FLOWERS Channel.
2.7. SPECIAL OFFERS/MEMBER BENEFITS. During the Term, 1-800-FLOWERS
shall on a reasonably periodic basis (but in no event less
than [****] per quarter), promote throughout the Affiliated
1-800-FLOWERS Sites special offers exclusively available to
AOL Members and/or AOL Users ("Special Offers"). Each Special
Offer made available by 1-800-FLOWERS shall provide a
substantial member benefit to AOL Users, either by virtue of a
meaningful price discount, product enhancement, unique service
benefit or other special feature. 1-800-FLOWERS shall provide
AOL with reasonable prior notice of such Special Offers so
that AOL can market the availability of such Special Offers in
the manner AOL deems appropriate in its editorial discretion.
1-800-FLOWERS shall ensure that such Special Offers are [****]
when compared with any other such offers made by or on behalf
of 1-800-FLOWERS through any Additional 1-800-FLOWERS Channel
during the same time the Special Offers are made available on
the Affiliated 1-800-FLOWERS Sites; PROVIDED, HOWEVER, that
the foregoing obligation shall not apply to a particular
Special Offer to the extent that 1-800-FLOWERS cannot make
such offer available due to the fact that such offer requires
certain support technology from AOL which AOL cannot, or
elects not to, provide. 1-800-FLOWERS shall use commercially
reasonable efforts to provide an AOL Special Offer (to be
mutually agreed upon by the Parties) during each year of the
Term to new CompuServe 2000 members.
2.8 OPERATING STANDARDS; NON-COMPLIANT CONTENT.
2.8.1 1-800-FLOWERS TECHNICAL PROBLEM. 1-800-FLOWERS
shall ensure that each of the Affiliated 1-800-FLOWERS
Sites complies at all times with the standards set forth in
Exhibit E hereto. In the event of (i) any 1-800-FLOWERS
Technical Problem, AOL shall have the right to block AOL
User access to the Affiliated 1-800-FLOWERS Site(s)
affected by the 1-800-FLOWERS Technical Problem until such
time as 1-800-FLOWERS cures such 1-800-FLOWERS Technical
Problem. In the event that 1-800-FLOWERS fails to cure any
such 1-800-FLOWERS Technical Problem within five (5)
business days, (a) AOL shall have the right (in addition to
any other remedies available to AOL hereunder (e.g., any
blocking right)) to reduce (on a PRO RATA basis) the Annual
Impressions Target for such Year (and for any subsequent
Year, in the event that such 1-800-FLOWERS Technical
Problem carries over from one Year to the next) until such
time as 1-800-FLOWERS cures such 1-800-FLOWERS Technical
Problem (and in such event, AOL shall be relieved of the
proportionate amount of the Impressions Commitment
corresponding to such reduction in Impressions) and (b) any
revenue threshold(s) set forth in Section 4 of this
Agreement shall each be adjusted proportionately to
correspond to such reduction in Impressions during the
period of non-compliance (e.g., for each day such
1-800-FLOWERS Technical Problem exists beyond such initial
five (5) business day period, the Impressions Commitment
shall be reduced by 1/365 of the Impressions to be provided
by AOL hereunder, and the relevant revenue threshold(s)
also shall be reduced by such percentage). In the event
that 1-800-FLOWERS fails to cure such 1-800-FLOWERS
Technical Problem within thirty (30) days, AOL shall have
the right to terminate this Agreement.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
5
CONFIDENTIAL
Any Dispute regarding the existence of a 1-800-FLOWERS Technical Problem (or any
cure thereof) shall be subject to the Dispute resolution provisions of Section 6
of this Agreement.
2.8.2 NON-COMPLIANT CONTENT.
(a) RESTRICTIONS ON CONTENT, SERVICES AND PRODUCTS ON THE AFFILIATED
1-800-FLOWERS SITES. 1-800-FLOWERS shall ensure that each Affiliated
1-800-FLOWERS Site does not in any respect:
(i) promote, advertise or market the Products,
services or Content of (a) any Interactive
Service other than AOL or (b) except as not
prohibited under Section 2.8.2(a)(iv), any
entity reasonably construed to be in
competition with any third party with which
AOL has an exclusive or premier (i.e.,
exclusivity granted by AOL to more than one
third party in a particular category)
relationship;
(ii) distribute the Products, services or Content
of any Interactive Service other than AOL;
(iii) promote, advertise, market, distribute or
otherwise offer any Products, services or
Content other than the Products, services or
Content contained on Exhibits D or J hereto,
except (a) in a manner whereby the
Transaction Revenues generated by the
Products, services and Content other than
that contained on Exhibits D or J hereto
(the "[****] Products") shall not exceed
[****] of the aggregate Transaction Revenues
generated under this Agreement and (b) in
accordance with the terms of Exhibit D
hereto; or
(iv) contain any promotions, advertisements,
marketing or links on the home pages of any
1-800-FLOWERS Affiliated Site in any way
related to any of the [****] Products with
respect to which AOL has entered into an
exclusive or premier arrangement with a
third party prior to the date on which
1-800-FLOWERS begins to offer (on the
relevant Affiliated 1-800-FLOWERS Site(s))
the Products, services or Content (as
applicable) covered by such exclusive or
premier relationship.
(b) VIOLATION; AOL BLOCKING RIGHT. In the event that (x) AOL shall
notify 1-800-FLOWERS of a violation of either of clauses (i)
or (ii) of Section 2.8.2(a), AOL shall have the right to block
AOL User access immediately to any relevant portion of the
1-800-FLOWERS Affiliated Site(s) (the "AOL Blocking Right")
and 1-800-FLOWERS shall have five (5) business days (following
such notice) to remove such non-compliant Products, services
or Content (together with the non-compliant Products, services
or Content set forth in clauses (iii) and (iv) of Section
2.8.2(a), collectively, the "Non-Compliant Content"). In the
event that AOL shall notify 1-800-FLOWERS of a violation of
either of clauses (iii) or (iv) of Section 2.8.2(a) above, AOL
may exercise its AOL Blocking Right in the event that
1-800-FLOWERS shall not have removed such Non-Compliant
Content within five (5) business days following such notice.
In connection with the exercise by AOL of its AOL Blocking
Right, AOL shall use commercially reasonable efforts to block
the minimum portion of any 1-800-FLOWERS Affiliated Site
necessary to address the violation by 1-800-FLOWERS of the
provisions of this Section 2.8.2.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
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CONFIDENTIAL
(c) VIOLATION; RIGHT TO REDUCE ANNUAL IMPRESSIONS
TARGET AND IMPRESSIONS COMMITMENT. In the event that
1-800-FLOWERS fails to remove any such Non-Compliant Content
within five (5) business days, (a) AOL shall have the right
(in addition to any blocking right) to reduce the Annual
Impressions Target [****] for such Year (and for any
subsequent Year, in the event that such Non-Compliant Content
carries over from one Year to the next) until such time as
1-800-FLOWERS corrects such Non-Compliant Content (and in such
event, AOL shall be relieved of the proportionate amount of
the Impressions Commitment corresponding to such decrease in
promotion) and (b) any revenue threshold(s) set forth in
Section 4 of this Agreement shall each be adjusted
proportionately to correspond to such decrease in Impressions
and other obligations during the period of non-compliance
(e.g., for each day beyond the five (5) business day cure
period 1-800-FLOWERS fails to cure such Non-Compliant Content,
the Impressions Commitment shall be reduced by [****] of the
Impressions to be provided by AOL hereunder, and the relevant
revenue threshold(s) also shall be reduced by such
percentage).
(d) VIOLATION; AOL RIGHT TO TERMINATE. In the event
that 1-800-FLOWERS fails to cure any such Non-Compliant
Content within thirty (30) days, AOL shall have the right to
terminate this Agreement.
(e) DISPUTES. Any Dispute regarding the existence of
Non-Complaint Content (or any cure thereof) shall be subject
to the Dispute resolution provisions of Section 6 of this
Agreement.
2.9. ADVERTISING SALES. Neither Party shall sell promotions,
advertisements, links, pointers or similar services or rights
through the Affiliated 1-800-FLOWERS Sites ("Advertisements")
unless and until the Parties have mutually agreed upon a
written advertising program whereby the Parties coordinate to
establish advertising inventory space and shall share mutually
agreed upon revenues generated from such advertising sales.
2.10. TRAFFIC FLOW. 1-800-FLOWERS shall take reasonable efforts to
ensure that AOL traffic is either kept within the applicable
Affiliated 1-800-FLOWERS Site or channeled back into the AOL
Network (with the exception of advertising links sold and
implemented pursuant to the Agreement). The Parties shall work
together on implementing mutually acceptable links from the
Affiliated 1-800-FLOWERS Sites back to the AOL Service.
3. AOL EXCLUSIVITY OBLIGATIONS.
3.1 FRESH-CUT FLOWERS EXCLUSIVITY. To the extent provided for in
this Section 3.1, 1-800-FLOWERS shall be the exclusive
provider of fresh-cut flowers on the AOL Properties. AOL shall
not promote, market or advertise the sale by any third-party
of (or permit any third party to promote market or advertise
the sale of) fresh-cut flowers on or through the
AOL-Controlled Areas during the Fresh-Cut Flowers Exclusivity
Period nor shall AOL promote, market or advertise the sale by
any 1-800-FLOWERS Competitor of (or permit any 1-800-FLOWERS
Competitor to promote, market or advertise the sale of) any
Plants or Gardening Products on or through the AOL-Controlled
Areas during the Fresh Cut Flowers Exclusivity Period. In
addition, vis-a-vis the 1-800-FLOWERS Competitors,
1-800-FLOWERS shall be the exclusive provider of fresh-cut
flowers, Plants and Gardening Products on the AOL Properties.
For purposes of this Section 3, the terms "promote", "market"
and "advertise" shall include not only their customary
meanings, but also any and all promotional linking and
pointing.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
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CONFIDENTIAL
During the Fresh-Cut Flowers Exclusivity Period, AOL shall use commercially
reasonable efforts to prevent any third party promoted or marketed by AOL (or to
whom AOL sells advertising) on the AOL Properties, as may be permitted
hereunder, from promoting, marketing or advertising fresh-cut flowers on the
home pages of such third parties' affiliated Interactive Sites (if any).
3.2 EXCEPTIONS. Notwithstanding anything to the contrary in this
Section 3 (and without limiting any actions which may be taken
by AOL without violation of 1-800-FLOWERS' rights hereunder),
no provision of this Agreement shall limit AOL's ability (on
or off the AOL Network) to:
(i) undertake activities or perform duties pursuant to
existing arrangements as of July 1, 1999 with third parties
excluding 1-800-Flowers Competitors, that include (as a
component thereof) the promotion, marketing or advertising of
any Gardening Products;
(ii) undertake or perform duties pursuant to any agreements to
which AOL becomes a party subsequent to July 1, 1999 as a
result of Change of Control, merger (where AOL is the
surviving entity) or acquisition, PROVIDED, HOWEVER, that in
the context of any agreements to which AOL becomes a party
following July 1, 1999, AOL (a) shall use commercially
reasonable efforts to provide 1-800-FLOWERS with an
opportunity during the applicable Exclusivity Period to bid
for the right to sell the Exclusive Products on any new AOL
property acquired by AOL and distributed through any AOL
Property in connection with any such Change or Control, merger
or acquisition and (b) shall not promote, market or advertise
the Exclusive Products (or the sale of the Exclusive Products
by any third party acquired pursuant to any such Change of
Control, merger or acquisition) on the AOL Properties nor
permit any third party to promote, market or advertise the
Exclusive Products on the AOL-Controlled Areas;
(iii) promote, market or sell advertising to any third-party
(other than a 1-800-FLOWERS Competitor (except as permitted by
Section 3.2(viii) below)), PROVIDED that (a) AOL does not
promote, market or advertise the Exclusive Products of any
such third party on any of the AOL Properties nor permit any
third party to promote, market or advertise the Exclusive
Products on the AOL-Controlled Areas and (b) AOL shall use
commercially reasonable efforts to ensure that such third
parties do not promote, market or advertise the Exclusive
Products on the home pages of such third parties' affiliated
Interactive Sites;
(iv) enter into an arrangement with any third party for the
primary purpose of acquiring incremental AOL Users whereby
such party is allowed to promote or market products or
services (other than on the AOL Properties) solely to the
incremental AOL Users that are acquired as a result of such
agreement;
(v) enter into any arrangement with any Full Service Home
Improvement Partner;
(vi) create contextual links or editorial commentary (provided
that any third parties referenced in such contextual links or
editorial commentary shall not have paid for any such
references for the purpose of selling their Exclusive
Products) relating to content describing the Exclusive
Products or any third party marketer of the Exclusive
Products;
(vii) promote, market or advertise the gardening content of
any third party, but excluding any 1-800-FLOWERS Competitor,
on the AOL Properties; or
(viii) enter into any agreement with any local merchant of
fresh-cut flowers on Digital City,
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CONFIDENTIAL
PROVIDED that AOL shall not (a) promote, market or advertise
any such fresh-cut flowers on any of the other AOL Properties
nor (b) promote, market or advertise any such local merchants
within the national areas of Digital City; PROVIDED, FURTHER,
that AOL shall use commercially reasonable efforts to ensure
that such local merchants do not promote, market or advertise
or sell fresh-cut flowers on the national areas of Digital
Cities (other than the local areas of Digital City) during the
Exclusivity Period; PROVIDED, HOWEVER, that 1-800-FLOWERS
acknowledges that an occasional, unintentional failure to
comply with the foregoing obligation shall not be deemed a
breach of this Agreement.
3.3 Nothing in this Agreement is intended, an any way, to prevent
1-800-FLOWERS from selling Plants and Gardening Products, in
addition to its other products.
4. PAYMENTS.
4.1. GUARANTEED PAYMENTS. During the Initial Term and while this
Agreement is in full force and effect, 1-800-FLOWERS shall pay
AOL a non-refundable guaranteed payment of Twenty Two Million
One Hundred Twenty Five Thousand Dollars ($22,125,000) as
follows:
(i) Seven Million Three Hundred Seventy Five Thousand
Dollars (US$7,375,000), to be paid on April 30, 2001;
(ii) Seven Million Three Hundred Seventy Five Thousand
Dollars (US$7,375,000), to be paid on April 30, 2002;
and
(iii) Seven Million Three Hundred Seventy Five Thousand
Dollars (US$7,375,000), to be paid on December 30,
2002.
4.2. SHARING OF TRANSACTION REVENUES.
(i) BASE REVENUE SHARE. If at any time during the
Initial Term, the aggregate amount of Transaction Revenues
generated during the Initial Term by AOL Purchasers as
currently tracked by 1-800-FLOWERS (excluding the Incremental
Revenue Share set forth in clause (ii) of this Section 4.2)
plus an amount equal to [****] of such Transaction Revenues
exceeds [****] (the "Revenue Threshold"), then 1-800-FLOWERS
shall pay AOL [****] of the Transaction Revenues (the "Base
Revenue Share") so generated during the remainder of the
Initial Term in excess of said Revenue Threshold.
1-800-FLOWERS shall pay all of the foregoing amounts on a
quarterly basis within thirty (30) days following the end of
the any such quarter in which the applicable Transaction
Revenues above the Revenue Threshold were generated.
(ii) INCREMENTAL REVENUE SHARE. In addition to the
Base Revenue Share, within thirty (30) days following
September 30, 2001, 1-800-FLOWERS shall pay AOL an amount
equal to (a) [****] of all Transaction Revenues up to and
including [****] generated on the AOL Service and XXX.xxx
during the period of July 1, 2000 through June 30, 2001 AND
(b) [****] of all Transaction Revenues generated in excess of
[****] on the AOL Service and XXX.xxx during the above period
(collectively, the "Incremental Revenue Share").
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
9
CONFIDENTIAL
4.3. LATE PAYMENTS; WIRED PAYMENTS. All amounts owed hereunder not
paid when due and payable shall bear interest from the date
such amounts are due and payable [****] in effect at such
time. Unless otherwise agreed upon by the Parties, all
payments required hereunder shall be paid in immediately
available, non-refundable U.S. funds wired to the "America
Online" account, Account Number [****] at The Chase Manhattan
Bank, 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000 (ABA:
000000000).
4.4. AUDITING RIGHTS. 1-800-FLOWERS shall maintain complete, clear
and accurate records of all expenses, revenues and fees in
connection with the performance of this Agreement. For the
sole purpose of ensuring compliance with this Agreement, AOL
(or its representative) shall have the right to conduct a
reasonable and necessary inspection of portions of the books
and records of 1-800-FLOWERS which are relevant to the amounts
payable by 1-800-FLOWERS pursuant to this Agreement. Any such
audit may be conducted after twenty (20) business days' prior
written notice to 1-800-FLOWERS; PROVIDED, HOWEVER, that no
such audit shall occur during the months of July or August in
any Year, and AOL shall be limited to one (1) such audit per
any Year of the Term, unless otherwise agreed upon by the
Parties. AOL shall bear the expense of any audit conducted
pursuant to this Section 4.4 unless such audit shows an error
in AOL's favor amounting to a deficiency to AOL in excess of
the greater of (i) [****] of the actual amounts due and
payable to AOL hereunder or (ii) [****], in which event
1-800-FLOWERS shall bear the reasonable expenses of the audit
(not to exceed [****]. 1-800-FLOWERS shall pay AOL the amount
of any deficiency discovered by AOL within thirty (30) days
after receipt of notice thereof from AOL, unless such amount
is contested in good faith by 1-800-FLOWERS, in which case
such Dispute shall be subject to the terms of Section 6 of
this Agreement. In the event that 1-800-FLOWERS has good-faith
grounds to question AOL's tracking and reporting of
Impressions, 1-800-FLOWERS shall be entitled to a report
issued by a qualified independent auditor describing AOL's
methodologies regarding the tracking and reporting of
Impressions and certifying AOL's compliance with such
methodologies and with AOL's obligations hereunder.
4.5. TAXES. 1-800-FLOWERS shall collect and pay, and indemnify and
hold AOL harmless from, any sales, use, excise, import or
export value added or similar tax or duty not based on AOL's
net income, including any penalties and interest, as well as
any costs associated with the collection or withholding
thereof, including attorneys' fees.
4.6. REPORTS. Each Party shall provide the other Party with certain
reports (the form and substance of which may be amended from
time to time upon the mutual agreement of the Parties)
evidencing the reporting Party's compliance with its
obligations under this Agreement and detailing certain
information, all as set forth below.
4.6.1. SALES REPORTS. Consistent with the reports currently
supplied by 1-800-FLOWERS to AOL, 1-800-FLOWERS shall
provide AOL with periodic reports, detailing the
following activity in each such period (and any other
information mutually agreed upon by the Parties or
reasonably required for measuring revenue activity by
1-800-FLOWERS through the Affiliated 1-800-FLOWERS
Sites): Transaction Revenues, chargebacks and credits
for returned or cancelled goods or services (and,
where possible, an explanation of the type of reason
therefor (e.g., bad credit card information, poor
customer service, etc.)) and credit card processing
fees charged and/or collected by relevant credit card
associations or issuing institutions (collectively,
the "Sales Reports"). AOL shall be entitled to use
the Sales Reports in its internal business
operations, subject to the terms of this Agreement.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
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CONFIDENTIAL
4.6.2. USAGE REPORTS. AOL shall provide 1-800-FLOWERS with
standard monthly usage information related to the
Promotions (e.g. a schedule of the Impressions
delivered by AOL at such time) which are similar in
substance and form to the reports provided by AOL to
other interactive marketing partners similar to
1-800-FLOWERS.
4.6.3. PROMOTIONAL REPORTS. Each Party shall provide the
other Party with a quarterly report documenting its
compliance with any promotional commitments that it
has undertaken under this Agreement. In reporting any
promotion, the Party should describe the nature of
the promotion, its duration and any other relevant
information regarding such promotion (including,
without limitation, any required information set
forth in the description of any such promotion).
4.6.4. FRAUDULENT TRANSACTIONS. To the extent permitted by
applicable laws, 1-800-FLOWERS shall provide AOL with
a prompt report of any fraudulent order, including
the date, screen name or email address and amount
associated with such order, promptly following
1-800-FLOWERS obtaining knowledge that the order is,
in fact, fraudulent.
5. TERM; RENEWAL; TERMINATION.
5.1. TERM. Unless earlier terminated as set forth herein, the
initial term of this Agreement shall begin on the Effective
Date and end on August 31, 2005 (the "Initial Term").
5.2. CONTINUED LINKS. Upon expiration of the Initial Term, AOL may,
at its discretion (for a period not to exceed two (2) years),
(i) continue to promote one or more "pointers" or links from
the AOL Network to (a) an agreed-upon 1-800-FLOWERS Affiliated
Site or (b) a 1-800-FLOWERS Interactive Site to be selected by
1-800-FLOWERS, and (ii) continue to use 1-800-FLOWERS' trade
names, trade marks and service marks (approved for AOL use by
1-800-FLOWERS during the Initial Term) solely in connection
therewith (collectively, a "Continued Link"). At the end of
such two (2) year period (and at the end of each subsequent
year thereafter), the Continued Link period shall
automatically be extended by one (1) additional year unless
either Party elects to terminate such Continued Link period
prior to the end of any such year (any such Continued Link
period, together with the Initial Term, collectively referred
to herein as the "Term"). So long as AOL maintains a Continued
Link, (i) 1-800-FLOWERS shall pay AOL [****] of the
Transaction Revenues generated during such period and (ii) the
obligations of the Parties under Sections 1, 2, 3, 4.1, 4.2,
4.6.2, 8 and Exhibits X, X, X, X, X, X, X, X and J shall no
longer apply.
5.3. TERMINATION FOR BREACH. Except as expressly provided elsewhere
in this Agreement, either Party may terminate this Agreement
at any time in the event of a material breach of the Agreement
by the other Party which remains uncured after thirty (30)
days written notice thereof to the other Party (or such
shorter period as may be specified elsewhere in this
Agreement); PROVIDED, HOWEVER, that the cure period with
respect to either Party's failure to make any payment to the
other Party required hereunder shall be ten (10) days from the
date of receipt of written notice regarding such payment.
Notwithstanding the foregoing, in the event of a material
breach of a provision that expressly requires action to be
completed within an express period shorter than thirty (30)
days, either Party may terminate this Agreement if the breach
remains uncured after written notice thereof to the other
Party.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
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CONFIDENTIAL
5.4. TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared
insolvent or bankrupt, (iii) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary or
involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
5.5. TERMINATION ON CHANGE OF CONTROL. In the event of a Change of
Control of 1-800-FLOWERS resulting in control of 1-800-FLOWERS
by an Interactive Service, AOL may terminate this Agreement by
providing thirty (30) days' prior written notice of such
intent to terminate.
5.6. EFFECT OF TERMINATION BY 1-800-FLOWERS FOR AOL MATERIAL
BREACH. In the event of termination of this Agreement by
1-800-FLOWERS due to any material breach of this Agreement by
AOL during any Year of this Agreement, 1-800-FLOWERS shall not
be required to pay AOL any amounts otherwise due to AOL (after
any such material breach) during the remainder of any such
Year or the remainder of the Term. Furthermore, in such event,
1-800-FLOWERS reserves all legal and equitable remedies it may
have related to any such material breach by AOL.
6. MANAGEMENT COMMITTEE/ARBITRATION.
6.1. MANAGEMENT COMMITTEE. The Parties shall act in good faith and
use commercially reasonable efforts to promptly resolve (and
in any event, within ten (10) business days) any claim,
dispute, claim, controversy or disagreement between the
Parties or any of their respective subsidiaries, affiliates,
successors and assigns under or related to this Agreement or
any document executed pursuant to this Agreement or any of the
transactions contemplated hereby (each, a "Dispute"). If the
Parties cannot resolve any such Dispute within such time
frame, the Dispute shall be submitted to the Management
Committee for resolution. For ten (10) days following
submission of the Dispute to the Management Committee, the
Management Committee shall have the exclusive right to resolve
such Dispute. If the Management Committee is unable to
amicably resolve the Dispute during such ten (10) day period,
then the Dispute shall be subject to the resolution mechanisms
described below. "Management Committee" shall mean a committee
of two (2) people, made up of a senior executive from each of
the Parties for the purpose of resolving Disputes under this
Section 6 and generally overseeing the relationship between
the Parties contemplated by this Agreement. Neither Party
shall seek, nor shall be entitled to seek, binding outside
resolution of the Dispute unless and until the Parties have
been unable amicably to resolve the Dispute as set forth in
this Section 6.1 and then, only in compliance with the
procedures set forth in this Section 6.
6.2. ARBITRATION. Except for Disputes relating to issues of
proprietary rights, including but not limited to intellectual
property and confidentiality, any Dispute not resolved by
amicable resolution as set forth in Section 6.1 shall be
governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration
Association ("AAA") in New York, New York, and shall be
initiated and conducted in accordance with the Commercial
Arbitration Rules ("Commercial Rules") of the AAA, including
the AAA Supplementary Procedures for Large Complex Commercial
Disputes ("Complex Procedures"), as such rules shall be in
effect on the date of delivery of a demand for arbitration
("Demand"), except to the extent that such rules are
inconsistent with the provisions set forth herein.
Notwithstanding the foregoing, the Parties may agree in good
faith that the Complex Procedures shall not apply in order to
promote the efficient arbitration of Disputes where the nature
of the Dispute, including without limitation the amount in
controversy, does not justify the application of such
procedures.
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CONFIDENTIAL
6.3. SELECTION OF ARBITRATORS. The arbitration panel shall consist
of three (3) arbitrators. Each Party shall name one (1)
arbitrator within ten (10) days after the delivery of the
Demand, and the third arbitrator shall be selected by the
first two arbitrators. If the two arbitrators are unable to
select a third arbitrator within ten (10) days, a third
neutral arbitrator shall be appointed by the AAA from the
panel of commercial arbitrators of any of the AAA Large and
Complex Resolution Programs. If a vacancy in the arbitration
panel occurs after the hearings have commenced, the remaining
arbitrator or arbitrators may not continue with the hearing
and determination of the controversy, unless the Parties agree
otherwise.
6.4. GOVERNING LAW. The Federal Arbitration Act, 9 U.S.C. Secs.
1-16, and not state law, shall govern the arbitrability of all
Disputes. The arbitrators shall allow such discovery as is
appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes.
The arbitrators shall reference the Federal Rules of Civil
Procedure then in effect in setting the scope and timing of
discovery. The Federal Rules of Evidence shall apply IN TOTO.
The arbitrators may enter a default decision against any Party
who fails to participate in the arbitration proceedings.
6.5. ARBITRATION AWARDS. The arbitrators shall have the authority
to award compensatory damages only or other equitable relief.
Any award by the arbitrators shall be accompanied by a written
opinion setting forth the findings of fact and conclusions of
law relied upon in reaching the decision. The award rendered
by the arbitrators shall be final, binding and non-appealable,
and judgment upon such award may be entered by any court of
competent jurisdiction. The Parties agree that the existence,
conduct and content of any arbitration shall be kept
confidential and no Party shall disclose to any person any
information about such arbitration, except as may be required
by law or by any governmental authority or for financial
reporting purposes in each Party's financial statements.
6.6. FEES. Each Party shall pay the fees of its own attorneys,
expenses of witnesses and all other expenses and costs in
connection with the presentation of such Party's case
(collectively, "Attorneys' Fees"). The remaining costs of the
arbitration, including without limitation, fees of the
arbitrators, costs of records or transcripts and
administrative fees (collectively, "Arbitration Costs") shall
be borne equally by the Parties. Notwithstanding the
foregoing, the arbitrators may modify the allocation of
Arbitration Costs and award Attorneys' Fees in those cases
where fairness dictates a different allocation of Arbitration
Costs between the Parties and an award of Attorneys' Fees to
the prevailing Party as determined by the arbitrators.
6.7 NON ARBITRATABLE DISPUTES. Any Dispute that is not subject to
final resolution by the Management Committee or to arbitration
under this Section 6 or by law (collectively, "Non-Arbitration
Claims") shall be brought in a court of competent jurisdiction
in the State of New York. Each Party irrevocably consents to
the exclusive jurisdiction of the courts of the State of New
York and the federal courts situated in New York City in the
State of New York, over any and all Non-Arbitration Claims and
any and all actions to enforce such claims or to recover
damages or other relief in connection with such claims.
7. PRESS RELEASES. Each Party shall submit to the other Party, for its
prior written approval, which shall not be unreasonably withheld or
delayed, any press release or any other public statement ("Press
Release") regarding the transactions contemplated hereunder.
Notwithstanding the foregoing, either Party may issue any disclosures
as required by law without the consent of the other Party and in such
event, the disclosing Party shall provide at least five (5) business
days prior written notice of such disclosure.
8. STANDARD TERMS. The Standard Online Commerce Terms & Conditions set
forth on Exhibit F attached hereto and Standard Legal Terms &
Conditions set forth on Exhibit G attached hereto are each hereby made
a part of this Agreement.
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[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth above.
AMERICA ONLINE, INC. 000-XXXXXXX.XXX, INC.
By: /s/ XXXXX XXXXXXX By: /s/ XXXXXXXXXXX X. XXXXXX
-------------------------------- --------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxxxxxxx X. XxXxxx
Title: President, Business Affairs Title: Senior Vice President
CONFIDENTIAL
EXHIBIT A
PLACEMENT/PROMOTION
A. CARRIAGE PERIOD, FRESH-CUT FLOWERS EXCLUSIVITY PERIOD
CARRIAGE AND
FRESH-CUT FLOWERS CARRIAGE AND FRESH-CUT FLOWERS EXCLUSIVITY
AOL PROPERTY EXCLUSIVITY BEGINS PERIOD ENDS
------------ ----------------- ------------------------------------------
XXX.xxx October 1, 2000 August 31, 2005 (end of Initial Term)*
AOL Service October 1, 2000 August 31, 2005 (end of Initial Term)*
CompuServe October 1, 2000 October 31, 2004 *
DCI October 1, 2000 October 31, 2004 *
ICQ October 1, 2000 April 30, 2005 *
Netcenter October 1, 2000 March 30, 2005*
B. CARRIAGE PLAN
To be agreed upon in writing by the Parties on or before September 8, 2000, or
another date (prior to the Effective Date) mutually agreed upon by the Parties,
and attached hereto.
NOTES TO CARRIAGE PLAN:
The Parties acknowledge and agree that the Carriage Plan, in order to
provide the best opportunity to reach the [****] goals (i.e., not
obligations) set forth in Section 1.1 of this Agreement, will include more
Impressions than the Impressions Commitment set forth in that certain amended
and restated Interactive Marketing Agreement between the Parties made and
entered into on September 1, 1999 (which has been terminated).
The Promotions designated for placement on the AOL Service and XXX.xxx
shall be placed thereon throughout the Initial Term.
AOL shall provide 1-800-FLOWERS with the Shopping Channel anchor
tenancies (the "Anchor Tenancies") as provided for under the certain amended and
restated Interactive marketing Agreement between the Parties made and entered
into on September 1, 1999, including, without limitation, Anchor Tenancies in
(i) Flowers, Cards Gifts, (ii) Home Improvement (gardening area), (iii) Gift
Suggestion, (iv) Gifts and (v) Gourmet Gifts). Such Anchor Tenancies shall
entitle 1-800-FLOWERS to placement that is no less prominent and favorable in
size and position on such screen than any other promotion on such
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
16
CONFIDENTIAL
screen. In addition, AOL will ensure that (a) the term "Flowers" (or a term
similar thereto, as mutually agreed upon by the Parties) will be a part of
the top-level department category description for a Shopping Channel
department in which 1-800-FLOWERS has a Shopping Channel placement and offers
fresh cut flowers for sale.
C. KEYWORD SEARCH TERMS AND GO WORD SEARCH TERMS
During the Term, subject to the terms and conditions hereof, 1-800-FLOWERS shall
have the right to use (i) the following Keyword Search Terms and (ii) the
following Go Word Search Terms:
Keyword Search Terms: [****]
Go Word Search Terms: [****]
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
17
CONFIDENTIAL
EXHIBIT B
DEFINITIONS
The following definitions shall apply to this Agreement:
AAA. "AAA" shall have the meaning set forth in Section 6.2 of this Agreement.
ACTION. "Action" shall have the meaning set forth in Section 9(d) of Exhibit G
to this Agreement.
ADDITIONAL 1-800-FLOWERS CHANNEL. Any other on-line or internet-based
distribution channel (e.g., an Interactive Service other than AOL) through which
1-800-FLOWERS makes available an offering comparable in nature to any Affiliated
1-800-FLOWERS Site.
ADVERTISEMENTS. "Advertisements" shall have the meaning set forth in Section 2.9
of this Agreement.
AFFILIATED 1-800-FLOWERS SITES. "Affiliated 1-800-FLOWERS Sites" shall have the
meaning set forth in Section 2.1 of this Agreement.
ANCHOR TENANCIES. "Anchor Tenancies" shall have the meaning set forth in Exhibit
A to this Agreement.
ANCILLARY GARDENING ITEMS. Hand-held gardening tools, trowels, soil scoops,
shears, pruners, spades, watering cans, hand xxxxx and hand-held forks;
PROVIDED, HOWEVER, that such term shall not include any gardening-related
machinery (e.g., roto-tillers, weed-whackers, lawn mowers, etc.) or home
improvement products (e.g., power tools, building materials, paint, etc.).
ANNUAL IMPRESSIONS TARGET. Each of the annual Impressions target amounts set
forth in Section B of Exhibit A to this Agreement.
AOL BLOCKING RIGHT. "AOL Blocking Right" shall have the meaning set forth in
Section 2.8.2(b) of this Agreement.
AOL-CONTROLLED AREAS. All areas of the AOL Properties which are owned,
maintained or controlled by AOL.
AOL INTERACTIVE SITE. Any Interactive Site that is managed, maintained, owned or
controlled by AOL or its agents or its affiliates.
AOL LOOK AND FEEL. The elements of graphics, design, organization, presentation,
layout, user interface, navigation and stylistic convention (including the
digital implementations thereof) which are generally associated with Interactive
Sites within the AOL Service or XXX.xxx.
AOL MEMBER. Any authorized user of the AOL Properties, including any
sub-accounts thereof under an authorized master account.
AOL NETWORK. (i) The AOL Properties and (ii) any other product or service owned,
operated, distributed or authorized to be distributed by or through AOL or its
affiliates worldwide (and including those properties excluded from the
definitions of the AOL Service or XXX.xxx). It is understood and agreed that the
rights of 1-800-FLOWERS relate only to the AOL Properties and not generally to
the AOL Network.
AOL PROPERTIES. The AOL Service, XXX.xxx, the CompuServe Service, Netscape
Netcenter, the ICQ Service and Digital City.
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CONFIDENTIAL
AOL PURCHASER. Any person or entity who enters any Affiliated 1-800-FLOWERS Site
from the AOL Network including, without limitation, from any third party area
therein (to the extent entry from such third party area is traceable through
both Parties' commercially reasonable efforts), and generates Transaction
Revenues (regardless of whether such person or entity provides an e-mail address
during registration or entrance to any such Affiliated 1-800-FLOWERS Site which
includes a domain other than an "XXX.xxx" domain).
AOL SERVICE. The standard U.S. version of the America Online-Registered
Trademark- brand service (including, the "Shop@AOL" area thereon),
specifically excluding (a) XXX.xxx or any other AOL Interactive Site, (b) the
international versions of the AOL Service (E.G., AOL Japan), (c) the
CompuServe-Registered Trademark- brand service and any other CompuServe
products or services (d) "Driveway," "ICQ-TM-," "AOL NetFind-TM-," "AOL
Instant Messenger-TM-," "Digital City," "NetMail-TM-," "Electra", "Thrive",
"Real Fans", "Love@AOL", "Entertainment Asylum," "AOL Hometown," "My News" or
any similar product, service or property which may be offered by, through or
with the U.S. version of the America Online-Registered Trademark- brand
service, (e) Netscape Netcenter-TM- and any additional Netscape products or
services, (f) any programming or Content area offered by or through the U.S.
version of the America Online-Registered Trademark- brand service over which
AOL does not exercise complete or substantially complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (g) any yellow pages, white pages, classifieds
or other search, directory or review services or Content offered by or
through the U.S. version of the America Online-Registered Trademark- brand
service, (h) any property, feature, product or service which AOL or its
affiliates may acquire subsequent to July 1, 1999 and (i) any other version
of an America Online service which is materially different from the standard
U.S. version of the America Online brand service, by virtue of its branding,
distribution, functionality, Content or services, including, without
limitation, any co-branded and/or customized version of the service and any
version distributed primarily through any broadband distribution platform or
through any platform or device other than a desktop personal computer.
AOL SETOFF RIGHT. "AOL Setoff Right" shall have the meaning set forth in Section
1.2 of this Agreement.
AOL USER. Any user of the AOL Service, XXX.xxx, CompuServe, Digital City, ICQ,
Netcenter or the AOL Network.
XXX.XXX. AOL's primary Internet-based Interactive Site marketed under the
"AOL.COM-TM-" brand (or any successor or substitute brand for the
"AOL.COM-TM-" brand), including the "Xxxx@XXX.xxx" area thereon, but
specifically excluding (a) the AOL Service, (b) any international versions of
XXX.xxx, (c) "ICQ-TM-," "AOL NetFind-TM-," "AOL Instant Messenger-TM-,"
"NetMail-TM-," "AOL Hometown," "My News" or any similar product or service
offered by or through such site or any other AOL Interactive Site, (d) any
programming or Content area offered by or through such site over which AOL
does not exercise complete or substantially complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (e) Netscape Netcenter-TM- and any
additional Netscape products or services, (f) any programming or Content area
offered by or through the U.S. version of the America Online-Registered
Trademark- brand service which was operated, maintained or controlled by the
former AOL Studios division (e.g., Electra), (g) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through such site or any other AOL Interactive Site, (h) any
property, feature, product or service which AOL or its affiliates may acquire
subsequent to July 1, 1999 and (i) any other version of an America Online
Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the "AOL.COM-TM-" brand, by
virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any customized and/or co-branded versions and
any version distributed primarily through any broadband distribution platform
or through any platform or device other than a desktop personal computer.
ARBITRATION COSTS. "Arbitration Costs" shall have the meaning set forth in
Section 6.6 of this Agreement.
ATTORNEYS' FEES. "Attorneys' Fees" shall have the meaning set forth in Section
6.6 of this Agreement.
BASE REVENUE SHARE. The revenue sharing arrangement set forth in Section 4.2(i)
of this Agreement.
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CHANGE OF CONTROL. The consummation of a reorganization, merger or consolidation
or sale or other disposition of substantially all of the assets of a party or
(b) the acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under such
Act) of more than 50% of the combined voting power of the then outstanding
voting securities of such party entitled to vote generally in the election of
directors.
COMMERCIAL RULES. "Commercial Rules" shall have the meaning set forth in Section
6.2 of this Agreement.
COMPLEX PROCEDURES. "Complex Procedures" shall have the meaning set forth in
Section 6.2 of this Agreement.
COMPUSERVE SERVICE. The standard U.S. version of the CompuServe brand service
(including the "Shop@CompuServe" area thereon), specifically excluding (a)
any international versions of such service, (b) Content areas owned,
maintained or controlled by CompuServe affiliates or any similar
"sub-service," (c) any programming or Content area offered by or through the
U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g.,
third-party Content areas), (d) Netscape Netcenter-TM- and any additional
Netscape products or services, (e) any yellow pages, white pages, classifieds
or other search, directory or review services or Content, (f) any co-branded
or private label branded version of the U.S. version of the CompuServe brand
service, (g) any version of the U.S. version of the CompuServe brand service
which offers Content, distribution, services and/or functionality materially
different from the Content, distribution, services and/or functionality
associated with the standard U.S. version of the CompuServe brand service,
including, without limitation, any version of such service distributed
primarily through any broadband distribution platform or through any platform
or device other than a desktop personal computer and (h) any property,
feature, product or service which CompuServe or its affiliates may acquire
subsequent to July 1, 1999.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of the Agreement, which is or should be reasonably understood to be confidential
or proprietary to the disclosing Party, including, but not limited to, the
material terms of this Agreement, information about AOL Members, AOL Users, AOL
Purchasers and 1-800-FLOWERS customers, technical processes and formulas, source
codes, product designs, sales, cost and other unpublished financial information,
product and business plans, projections, and marketing data. "Confidential
Information" shall not include information (a) already lawfully known to or
independently developed by the receiving Party, (b) disclosed in published
materials, (c) generally known to the public, or (d) lawfully obtained from any
third party.
CONTENT. Text, images, video, audio (including, without limitation, music used
in synchronism or timed relation with visual displays) and other data, Products,
advertisements, promotions, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
CONTEST. "Contest" shall have the meaning set forth in Section 3 of Exhibit F to
this Agreement.
CONTINUED LINK. "Continued Link" shall have the meaning set forth in Section 5.2
of this Agreement.
CUSTOMERS. "Customers" shall have the meaning set forth in Section 9(a) of
Exhibit F to this Agreement.
CUT-OFF TIME. "Cut-Off Time" shall have the meaning set forth in Section 9(b) of
Exhibit F to this Agreement.
DEMAND. "Demand" shall have the meaning set forth in Section 6.2 of this
Agreement.
DIGITAL CITY. The standard U.S. version of Digital City's local content
offerings marketed under the Digital City-Registered Trademark- brand name
(including the "Shop@Digital City" area thereon), specifically excluding (a)
the AOL Service, XXX.xxx or any other AOL Interactive Site, (b) any
international versions of such local content offerings, (c) the
CompuServe-Registered Trademark- brand service and any other CompuServe
products or services, (d)
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"Driveway," "ICQ-TM-," "AOL NetFind-TM-," "AOL Instant Messenger-TM-,"
"Digital City," "NetMail-TM-," "Electra", "Thrive", "Real Fans",
"Love@AOL", "Entertainment Asylum," "AOL Hometown," "My News" or any similar
product, service or property which may be offered by, through or with the
standard version of Digital City's local content offerings, (e) Netscape
Netcenter-TM- and any additional Netscape products or services, (f) any
programming or Content area offered by or through such local content
offerings over which AOL does not exercise complete or substantially complete
operational control (including, without limitation, Content areas controlled
by other parties and member-created Content areas), (g) any yellow pages,
white pages, classifieds or other search, directory or review services or
Content offered by or through such local content offerings, (h) any property,
feature, product or service which AOL or its affiliates may acquire
subsequent to July 1, 1999, (i) any other version of a Digital City local
content offering which is materially different from the U.S. version of
Digital City's local content offerings marketed under the Digital
City-Registered Trademark- brand name, by virtue of its branding,
distribution, functionality, Content or services, including, without
limitation, any co-branded and/or customized version of the offerings and any
version distributed primarily through any broadband distribution platform or
through any platform or device other than a desktop personal computer, and
(j) Digital City-branded offerings in any local area where such offerings are
not owned or operationally controlled by AOL, Inc. or DCI (e.g., Chicago,
Orlando, South Florida, and Hampton Roads).
DISCLAIMED DAMAGES. "Disclaimed Damages" shall have the meaning set forth in
Section 9(a) of Exhibit G to this Agreement.
DISPUTE. "Dispute" shall have the meaning set forth in Section 6.1 of this
Agreement.
EXCESS IMPRESSIONS. "Excess Impressions" shall have the meaning set forth in
Section 1.2 of this Agreement.
EXCLUSIVE PRODUCTS. Fresh-cut flowers solely during the Fresh-Cut Flowers
Exclusivity Period.
EXCLUSIVITY PERIOD. The Fresh-Cut Flowers Exclusivity Period.
FINAL SHORTFALL. "Final Shortfall" shall have the meaning set forth in Section
1.2 of this Agreement.
FULL SERVICE HOME IMPROVEMENT PARTNER. Any online provider of home improvement
products and services (e.g., lawn mowers, paint supplies, power tools, or other
home appliances), provided that such Full Service Home Improvement Partner also
may sell gardening tools and supplies, fertilizer, seeds, plants, etc.
FRESH-CUT FLOWERS EXCLUSIVITY PERIOD. With respect to fresh-cut flowers to be
offered on or through the Affiliated 1-800-FLOWERS Sites, the dates set forth on
Exhibit A (Section A) hereto, solely to the extent as such dates apply to each
respective AOL Property.
GARDENING AREA. The area on the Shopping Channel (or any successor area thereto)
of the AOL Service that is primarily dedicated to the promotion and sale of
gardening-related Products.
GARDENING PLANT. Any bulbs, live plants, bare-root materials, seeds, trees,
herbs, topiaries and any other living horticultural or gardening-related plants
or shrubs explicitly for use in a garden.
GARDENING PRODUCTS. Any Gardening Plants or Ancillary Gardening Items.
GIFT BASKET. A collection of Products packaged together with a theme in mind and
sold as a single unit.
GO WORD SEARCH TERMS. The Go Word online search terms made available on the
CompuServe Service for use by CompuServe Service members, combining the
CompuServe Service's Go word online search modifier (i.e., "Go:") with a term or
phrase specifically related to 1-800-FLOWERS (and determined in accordance with
the terms of this Agreement).
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ICQ CLIENT. (i) The persistent, desktop-based instant messaging, chat and "buddy
list" client software developed by or for ICQ and distributed by or for ICQ that
enables ICQ Users to send messages, chat, track the online status of other users
and use the ICQ Service, and (ii) any Updates thereto. The ICQ Client shall not
include (a) any discrete applications providing substantially different
services, regardless of any shared use of the ICQ Service backend (e.g.,
presence engine, directory server, etc.), (b) any desktop search application,
ICQ desktop information "ticker," ICQ mail client or ICQ co-browser, (c) any
version of the ICQ Client that is co-branded with an unaffiliated third party,
or (d) plug-ins to other clients (e.g., browser plug-ins).
ICQ SERVICE. The standard English language version of the ICQ brand
communications and messaging service available in the U.S. and internationally
(e.g., to U.S.- and internationally-based ICQ Members), including the "Shop@ICQ"
area thereon, but specifically excluding (a) "ICQ It!" or any similar product,
service or property which may be offered by, through or with the English
language version of the ICQ brand service, (b) any programming or Content area
offered by or through the English language version of the ICQ brand service over
which ICQ does not exercise complete or substantially complete operational
control (including, without limitation, Content areas controlled by other
parties, whether or not co-branded with ICQ, and ICQ user-created Content
areas), (c) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through the English
language version of the ICQ brand service, (d) any property, feature, product or
service which ICQ or its affiliates may acquire subsequent to July 1, 1999 and
(e) any other version of an ICQ service which is materially different from the
standard English language version of the ICQ brand service, by virtue of its
branding, language (e.g., the Japanese-language version), distribution,
functionality, Content or services, including, without limitation, any
co-branded and/or customized version of the service or any version distributed
primarily through any broadband distribution platform or through any platform or
device other than a desktop personal computer.
IMPRESSION. User exposure to the applicable Promotion, as such exposure may be
reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols.
IMPRESSIONS COMMITMENT. "Impressions Commitment" shall have the meaning set
forth in Section 1.2 of this Agreement.
INCREMENTAL YEAR 1 REVENUE SHARE. "Incremental Year 1 Revenue Share" shall have
the meaning set forth in Section 4.2(ii) of this Agreement.
INCREMENTAL YEAR 2 REVENUE SHARE. "Incremental Year 2 Revenue Share" shall have
the meaning set forth in Section 4.2(iii) of this Agreement.
INDEMNIFIED PARTY. "Indemnified Party" shall have the meaning set forth in
Section 9(d) of Exhibit G to this Agreement.
INDEMNIFYING PARTY. "Indemnifying Party" shall have the meaning set forth in
Section 9(d) of Exhibit G to this Agreement.
INITIAL TERM. "Initial Term" shall have the meaning set forth in Section 5.1 of
this Agreement.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i) online
or Internet connectivity services (e.g., an Internet service provider); (ii) an
interactive site or service featuring a broad selection of aggregated third
party interactive content (or navigation thereto) (e.g., an online service or
search and directory service) and/or marketing a broad selection of products
and/or services across numerous interactive commerce categories (e.g., an online
mall or other leading online commerce site); (iii) a persistent desktop client;
and (iv) communications software capable of serving as the principal means
through which a user creates, sends and receives electronic mail or real time
online messages (whether by telephone, computer or other means), including,
without limitation, greeting cards but excluding virtual bouquets or similar
items.
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INTERACTIVE SITE. Any interactive site or area, including, by way of example
and without limitation, (i) an 1-800-FLOWERS site on the World Wide Web
portion of the Internet or (ii) a channel or area delivered through a "push"
product such as the [****] or interactive environment such as [****].
KEYWORD SEARCH TERMS. (i) The Keyword-TM- online search terms made
available on the AOL Service for use by AOL Members, combining AOL's
Keyword-TM- online search modifier with a term or phrase specifically
related to 1-800-FLOWERS (and determined in accordance with the terms of this
Agreement), and (ii) the Go Word Search Terms.
LIABILITIES. "Liabilities" shall have the meaning set forth in Section 9(c) of
Exhibit G to this Agreement.
LICENSED CONTENT. All Content offered through the Affiliated 1-800-FLOWERS
Sites pursuant to this Agreement or otherwise provided to AOL by
1-800-FLOWERS or its agents in connection herewith (e.g., offline or online
promotional Content, Promotions, AOL "slideshows", etc.), including in each
case, any modifications, upgrades, updates, enhancements, and related
documentation.
MAKE-WHOLE PERIOD. "Make-Whole Period" shall have the meaning set forth in
Section 1.2 of this Agreement.
MANAGEMENT COMMITTEE. "Management Committee" shall have the meaning set forth
in Section 6.1 of this Agreement.
MARKS. "Marks" shall have the meaning set forth in Section 3 of Exhibit G to
this Agreement.
MERCHANDISE VALUE. The gross sales price of a Product, less taxes, service
charges, shipping and handling charges, discounts, gift certificates, refunds,
chargebacks, rebates and credit card processing fees.
NETSCAPE NETCENTER. The U.S. version of the Netscape Netcenter internet based
interactive site marketed under the "Netcenter" brand (including the
"Shop@Netcenter" area thereon), specifically excluding (a) any other Netscape or
Netscape Affiliate owned or operated internet based interactive sites, (b) the
international versions of Netcenter or any similar Netscape or Affiliate service
or interactive site; (c) "Netscape AOL Instant Messenger(TM)," "Netscape Custom
Netcenter," Netscape WebMail, or any similar independent product, service or
property which may be offered by, through or by Netscape; (d) any programming or
content area offered by or through the U.S. version of the Netcenter brand
service over which Netscape does not exercise complete or substantially complete
operational control (including, without limitation, Content areas controlled by
other parties), (e) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through the U.S. version
of the Netcenter brand service, (f) any property, feature, product or service
which Netscape or its Affiliates may acquire subsequent to July 1, 1999 and (g)
any other version of a Netscape service which is materially different from
Netcenter by virtue of its branding, distribution, functionality, Content or
services, including, without limitation, any co-branded and/or customized
version of the service or any version distributed primarily through any
broadband distribution platform or through any platform or device other than a
desktop personal computer.
NEW FUNCTIONALITY. "New Functionality" shall have the meaning set forth in
Section 8.v of Exhibit E to this Agreement.
NON-ARBITRATION CLAIMS. "Non-Arbitration Claims" shall have the meaning set
forth in Section 6.7 of this Agreement.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
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NON-COMPLIANT CONTENT. "Non-Compliant Content" shall have the meaning set forth
in Section 2.8.2(b) of this Agreement.
1-800-FLOWERS COMPETITORS. "1-800-FLOWERS Competitors" shall have the meaning
set forth on Exhibit K hereto.
1-800-FLOWERS INTERACTIVE SITE. Any Interactive Site (other than the Affiliated
1-800-FLOWERS Sites) which is managed, maintained, owned or controlled primarily
by 1-800-FLOWERS or its agents.
1-800-FLOWERS LOOK AND FEEL. The elements of graphics, design, organization,
presentation, layout, user interface, navigation and stylistic convention
(including the digital implementations thereof) which are generally associated
with 1-800-FLOWERS Interactive Sites.
1-800-FLOWERS ONLINE GARDENING CHANNEL. The specific area or web site launched
by 1-800-FLOWERS, through which 1-800-FLOWERS shall market and complete
transactions regarding Gardening Products.
1-800-FLOWERS TECHNICAL PROBLEM. "1-800-FLOWERS Technical Problem" shall have
the meaning set forth in Section 4 of Exhibit E to this Agreement.
ORIGINAL IMAS. "Original IMAs" shall refer to (i) that certain amended and
restated Interactive Marketing Agreement between the Parties made and entered
into on September 1, 1999, (ii) that certain Interactive Marketing Agreement
between the Parties dated May 1, 1997 and (iii) that certain additional
Interactive Marketing Agreement dated as of January 1, 1998 between the Parties.
PLANT. A live, flowering plant (e.g., azalea plant, gardenia plant, juniper
bonsai, lavender plant, hibiscus (in a cache pot), chrysanthemum plant,
kalanchoe in a window box and "dish gardens") (but expressly excluding Gardening
Plants, wreaths, bulbs, bare-root materials, dried flowers, seeds, trees, herbs,
shrubs, topiaries and other horticultural or gardening-related plants). Nothing
herein is intended to prevent 1-800-FLOWERS from selling any plant through the
Affiliated 1-800-FLOWERS Sites.
PRESS RELEASE. "Press Release" shall have the meaning set forth in Section 7 of
this Agreement.
PRODUCT. Any product, good or service which 1-800-FLOWERS (or others acting on
its behalf or as distributors) offers, sells, provides, distributes or licenses
to AOL Users directly or indirectly through (i) any Affiliated 1-800-FLOWERS
Site (including through any Interactive Site linked thereto), (ii) any other
electronic means directed at AOL Users (e.g., e-mail offers), or (iii) an
"offline" means (e.g., toll-free number) for receiving orders related to
specific offers within the Affiliated 1-800-FLOWERS Sites requiring purchasers
to reference a specific promotional identifier or tracking code, including,
without limitation, products sold through surcharged downloads (to the extent
expressly permitted hereunder).
PRODUCTION PLAN. "Production Plan" shall have the meaning set forth in Section
10 of Exhibit F to this Agreement.
PROMO CONTENT. "Promo Content" shall have the meaning set forth in Section 1.3
of this Agreement.
PROMOTIONS. "Promotions shall have the meaning set forth in Section 1.1 of this
Agreement.
PROMOTIONAL ACTIVITIES. "Promotional Activities" shall have the meaning set
forth in Section 1.1 of this Agreement.
PROMOTIONAL MATERIALS. "Promotional Materials" shall have the meaning set forth
in Section 1 of Exhibit G to this Agreement.
QUALIFIED INTERACTIVE SERVICE. An entity offering one or more of the following:
(i) online or Internet
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connectivity services (e.g., an Internet service provider); (ii) an interactive
site or service featuring a broad selection of aggregated third party
interactive content (or navigation thereto) (e.g., an online service or search
and directory service) and/or marketing a broad selection of products and/or
services across numerous interactive commerce categories (e.g., an online mall
or other leading online commerce site); (iii) a persistent desktop client; and
(iv) communications software capable of serving as the principal means through
which a user creates, sends and receives electronic mail or real time online
messages (whether by telephone, computer or other means).
REVENUE THRESHOLD. "Revenue Threshold" shall have the meaning set forth in
Section 4.2(i) of this Agreement.
SALES REPORTS. "Sales Reports" shall have the meaning set forth in Section 4.6.1
of this Agreement.
SHOPPING CHANNEL. "Shopping Channel" shall mean the areas within the "Shop@AOL,"
Xxxx@XXX.xxx," Shop@CompuServe," "Shop@Digital City," "Shop@Netcenter" and
"Shop@ICQ" that are owned, maintained or controlled by the respective AOL
Properties.
SHORTFALL. "Shortfall" shall have the meaning set forth in Section 1.2 of this
Agreement.
SHORTFALL PENALTY. "Shortfall Penalty" shall have the meaning set forth in
Section 1.2 of this Agreement.
SPECIAL OFFERS. "Special Offers" shall have the meaning set forth in Section 2.7
of this Agreement.
TIER. "Tier" shall have the meaning set forth in Exhibit A hereto.
TERM. "Term" shall have the meaning set forth in Section 5.2 of this Agreement.
TRANSACTION REVENUES. Aggregate amounts paid by AOL Purchasers, as currently
tracked, in connection with the sale, licensing, distribution or provision of
any Products which 1-800-FLOWERS sells to AOL Purchasers on or through any
1-800-FLOWERS Affiliated Site, including, in each case, handling, shipping,
Service Charges, and excluding, in each case, (a) amounts collected for sales or
use taxes or duties, (b) credit card processing fees to the extent charged
and/or collected by the credit card issuer and (c) credits and chargebacks for
returned or canceled goods or services, but not excluding cost of goods sold or
any similar cost.
[****] PRODUCTS. "[****] Products" shall have the meaning set forth in Section
2.8.2(a)(iii) of this Agreement.
YEAR. The time period between each of (i) the Effective Date and the first
anniversary thereof; (ii) the first anniversary of the Effective Date and the
second anniversary thereof; (iii) the second anniversary of the Effective Date
and the third anniversary thereof; and (iv) the third anniversary of the
Effective Date and the fourth anniversary thereof.
YEAR 1. October 1, 2000 through September 30, 2001.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
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EXHIBIT C
1-800-FLOWERS CROSS-PROMOTION
A. 1-800-FLOWERS shall prominently and regularly promote the Affiliated
1-800-FLOWERS Sites (making specific mention of their availability
through the AOL Properties) in (i) approximately [****] of
1-800-FLOWERS-controlled television, radio or print advertisements that
are produced after the Effective Date and that specifically mention any
of 1-800-FLOWERS' online or Internet-based shopping functionality and
(ii) approximately [****] of any publications, programs, features or
other forms of media under 1-800-FLOWERS' control (excluding the
advertisements subject to clause (i)). In this regard, in [****]
instances when 1-800-FLOWERS makes promotional reference in [****]
print advertisements to [****] 1-800-FLOWERS Interactive Site (each
such reference, a "Web Reference"), 1-800-FLOWERS shall include a
specific reference to the availability of the Affiliated 1-800-FLOWERS
Sites through AOL and its affiliated interactive properties of at least
equal prominence to the Web Reference by the use of the Keyword Search
Term for the AOL Service or otherwise); any listings of the applicable
"URL(s)" for such Affiliated 1-800-FLOWERS Site(s) shall include a
listing of the Keyword for the AOL Service of at least equal prominence
to the Web Reference. AOL acknowledges that an occasional,
unintentional failure to comply with the foregoing promotional
commitments shall not be deemed a breach of this Agreement.
B. 1-800-FLOWERS shall ensure that (a) AOL is given the exclusive first
opportunity to participate in [****] of any online or Internet-related
marketing and promotional activities, initiated and/or controlled by
(directly or through an advertising agency) 1-800-FLOWERS, which
1-800-FLOWERS desires to conduct with any Interactive Service
subsequent to execution hereof (so long as AOL informs 1-800-FLOWERS of
its desire to participate in any such activity within five (5) business
days following receipt of written notice from 1-800-FLOWERS detailing
the opportunity) and (b) AOL receives substantially more promotion and
marketing (in value, duration, prominence, etc.) from 1-800-FLOWERS
than any such other Interactive Service receives from FLOWERS.
C. 1-800-FLOWERS shall include each of the following promotions for the
Online Area and AOL within each 1-800-FLOWERS Interactive Site during
the term of the Agreement: (i) a prominent "Try AOL" feature in the
area where 1-800-FLOWERS mentions its business partners (which is
currently known as "About 1-800-FLOWERS") where users can obtain
promotional information about AOL products and services and, at AOL's
option, download or order AOL's then-current version of client software
for the America Online(R) brand service and (ii) a link from the
1-800-FLOWERS Interactive Site to AOL's primary site on the World Wide
Web.
D. During the Initial Term, 1-800-FLOWERS shall not promote any Qualified
Interactive Service (other than AOL) as its preferred Interactive
Service.
**** Represents material which has been redacted and filed separately with
the Securities and Exchange Commission pursuant to a request for
confidential treatment under Rule 406 of the Securities Act of 1933, as
amended.
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EXHIBIT D
DESCRIPTION OF PRODUCTS AND OTHER CONTENT
The Products to be offered by 1-800-FLOWERS on the Affiliated 1-800-FLOWERS
Sites shall include:
1. Fresh-cut flowers, Gardening Products and Plants
2. Balloons
3. Gift Baskets (which may include books related to the Products listed
on this Exhibit D and Exhibit J)
4. Gourmet foods and candy
5. Home decor
6. Books and videos related to fresh-cut flowers, Gardening Products
and Plants; PROVIDED that such books and videos (excluding those
books and videos promoted as part of a Gift Basket or promoted as
part of a theme package (i.e., "Books and Blooms")) shall not be
promoted, marketed or advertised by or on behalf of 1-800-FLOWERS
on any home page of any Affiliated 1-800-FLOWERS Site; PROVIDED,
further, that books shall not constitute more than [****] of the
annual gross revenues generated by the 1-800-FLOWERS Sites in any
Year of the Initial Term.
7. Sentiment expression products and specialty gifts
8. Products listed on Exhibit J
For the avoidance of doubt, during the Initial Term, 1-800-FLOWERS also
shall be permitted to continue to offer on the Affiliated 1-800-FLOWERS
Sites any Products or services offered by 1-800-FLOWERS on the AOL
Properties pursuant to the terms of the Original IMAs prior to the
Effective Date hereof.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
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EXHIBIT E
OPERATIONS
1. AFFILIATED 1-800-FLOWERS SITES INFRASTRUCTURE. 1-800-FLOWERS shall be
responsible for all communications, hosting and connectivity costs and
expenses associated with the Affiliated 1-800-FLOWERS Sites.
1-800-FLOWERS shall provide all hardware, software, telecommunications
lines and other infrastructure necessary to meet traffic demands on the
Affiliated 1-800-FLOWERS Sites from the AOL Network. 1-800-FLOWERS
shall design and implement the network between the AOL Service and
Affiliated 1-800-FLOWERS Sites such that (i) no single component
failure shall have a materially adverse impact on AOL Members seeking
to reach the Affiliated 0-000-XXXXXXX Sites from the AOL Network and
(ii) no single line under material control by 1-800-FLOWERS shall run
at more than 70% average utilization for a 5-minute peak in a daily
period. In this regard, 1-800-FLOWERS shall provide AOL, upon request,
with a detailed network diagram regarding the architecture and network
infrastructure supporting the Affiliated 1-800-FLOWERS Sites. In the
event that 1-800-FLOWERS elects to create a custom version of any
Affiliated 1-800-FLOWERS Site in order to comply with the terms of this
Agreement, 1-800-FLOWERS shall bear responsibility for all aspects of
the implementation, management and cost of such customized site.
2. OPTIMIZATION; SPEED. 1-800-FLOWERS shall use commercially reasonable
efforts to ensure that: (a) the functionality and features within the
Affiliated 1-800-FLOWERS Sites are optimized for the client software
then in use by AOL Members; and (b) each of the Affiliated
1-800-FLOWERS Sites is designed and populated in a manner that
minimizes delays when AOL Members attempt to access such site. At a
minimum, 1-800-FLOWERS shall ensure that each Affiliated 1-800-FLOWERS
Site's data transfers initiate within fewer than fifteen (15) seconds
on average. Prior to commercial launch of any material promotions
described herein, 1-800-FLOWERS shall permit AOL to conduct performance
and load testing of the Affiliated 1-800-FLOWERS Sites (in person or
through remote communications), with such commercial launch not to
commence until such time as AOL is reasonably satisfied with the
results of any such testing.
3. USER INTERFACE. 1-800-FLOWERS shall maintain a graphical user interface
within each Affiliated 1-800-FLOWERS Site that is competitive in all
material respects with interfaces of other similar sites based on
similar form technology. AOL reserves the right to review the user
interface and site design prior to launch of the Promotions and to
conduct focus group testing to assess compliance with respect to such
consultation and with respect to 1-800-FLOWERS' compliance with the
preceding sentence.
4. TECHNICAL PROBLEMS. 1-800-FLOWERS agrees to use commercially reasonable
efforts to address material technical problems (over which
1-800-FLOWERS exercises control) affecting use by AOL Members of the
Affiliated 1-800-FLOWERS Sites (a "1-800-FLOWERS Technical Problem")
promptly following notice thereof. In the event that 1-800-FLOWERS is
unable to promptly resolve a 1-800-FLOWERS Technical Problem following
notice thereof from AOL (including, without limitation, infrastructure
deficiencies producing user delays), AOL shall have the right to
regulate the promotions it provides to 1-800-FLOWERS hereunder until
such time as 1-800-FLOWERS corrects the 1-800-FLOWERS Technical Problem
at issue.
5. MONITORING. 1-800-FLOWERS shall use commercially reasonable efforts to
ensure that the performance and availability of each Affiliated
1-800-FLOWERS Site is monitored on a reasonably continuous basis.
1-800-FLOWERS shall provide AOL with contact information (including
e-mail, phone, pager and fax information, as applicable, for both
during and after business hours) for 1-800-FLOWERS' principal business
and technical representatives, for use in cases when issues or problems
arise with respect to any Affiliated 1-800-FLOWERS Site.
6. TELECOMMUNICATIONS. Where applicable 1-800-FLOWERS shall utilize
encryption methodology to secure data communications between the
Parties' data centers. The network between the Parties shall be
configured such that no single component failure shall significantly
impact AOL Users. The network shall be sized such that no single line
over which the 1-800-FLOWERS has material control runs at more than 70%
average utilization for a 5-minute peak in a daily period.
7. SECURITY. 1-800-FLOWERS shall utilize Internet standard encryption
technologies (e.g., Secure Socket Layer - SSL) to provide a secure
environment for conducting transactions and/or transferring private
member information (e.g. credit card numbers, banking/financial
information, and member address information) to and from any Affiliated
1-800-FLOWERS Site. 1-800-FLOWERS shall facilitate periodic reviews of
the Affiliated 1-800-FLOWERS Sites by AOL in order to evaluate the
security risks of such site. 1-800-FLOWERS shall promptly remedy any
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security risks or breaches of security as may be identified by AOL's
Operations Security team.
8. TECHNICAL PERFORMANCE.
i. 1-800-FLOWERS shall design the Affiliated 1-800-FLOWERS Sites to
support the AOL-client embedded versions of the Microsoft Internet
Explorer 3.XX and 4.XX browsers (Windows and Macintosh)and the Netscape
Browser 4.XX and make commercially reasonable efforts to support all
other AOL browsers listed at: "xxxx://xxxxxxxxx.xxxx.xxx.xxx."
ii. To the extent 1-800-FLOWERS creates customized pages on any
Affiliated 1-800-FLOWERS Site for AOL Members, 1-800-FLOWERS shall
develop and employ a methodology to detect AOL Members (e.g. examine
the HTTP User-Agent field in order to identify the "AOL Member-Agents"
listed at: "xxxx://xxxxxxxxx. xxxx.xxx.xxx)."
iii. 1-800-FLOWERS shall periodically review the technical
information made available by AOL at xxxx://xxxxxxxxx.xxxx.xxx.xxx.
iv. 1-800-FLOWERS shall design its site to support HTTP 1.0 or later
protocol as defined in RFC 1945 and to adhere to AOL's parameters for
refreshing or preventing the caching of information in AOL's proxy
system as outlined in the document provided at the following URL:
xxxx://xxxxxxxxx.xxxx.xxx.xxx. 1-800-FLOWERS is responsible for the
manipulation of these parameters in web-based objects so as to allow
them to be cached or not cached as outlined in RFC 1945.
v. Prior to releasing material, new functionality or features
through any Affiliated 1-800-FLOWERS Site ("New Functionality"),
1-800-FLOWERS shall use commercially reasonable efforts to (i) test the
New Functionality to confirm its compatibility with AOL Service client
software and (ii) provide AOL with written notice of the New
Functionality so that AOL can perform tests of the New Functionality to
confirm its compatibility with the AOL Service client software. Should
any new material, new functionality or features through any Affiliated
1-800-FLOWERS Site be released without notification to AOL, AOL shall
not be responsible for any adverse member experience until such time
that compatibility tests can be performed and the new material,
functionality or features qualified for the AOL Service
9. AOL INTERNET SERVICES 1-800-FLOWERS SUPPORT. AOL shall provide
1-800-FLOWERS with access to the standard online resources, standards
and guidelines documentation, technical phone support, monitoring and
after-hours assistance that AOL makes generally available to similarly
situated web-based partners. AOL support shall not, in any case, be
involved with content creation on behalf of 1-800-FLOWERS or support
for any technologies, databases, software or other applications which
are not supported by AOL or are related to any 1-800-FLOWERS area other
than the Affiliated 1-800-FLOWERS Sites. Support to be provided by AOL
is contingent on 1-800-FLOWERS providing to AOL demo account
information (where applicable), a detailed description of the
respective Affiliated 1-800-FLOWERS Site's software, hardware and
network architecture and access to the respective Affiliated
1-800-FLOWERS Site for purposes of such performance and load testing as
AOL elects to conduct.
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EXHIBIT F
STANDARD ONLINE COMMERCE TERMS & CONDITIONS
1. AOL NETWORK DISTRIBUTION. 1-800-FLOWERS shall not authorize or
knowingly permit any third party to distribute or promote the Products
or any 1-800-FLOWERS Interactive Site through the AOL Network absent
AOL's prior written approval. The Promotions and any other promotions
or advertisements purchased from or provided by AOL shall link only to
the Affiliated 1-800-FLOWERS Sites, shall be used by 1-800-FLOWERS
solely for its own benefit and shall not be resold, traded, exchanged,
bartered, brokered or otherwise offered to any third party.
2. PROVISION OF OTHER CONTENT. In the event that AOL notifies
1-800-FLOWERS that (i) as reasonably determined by AOL, any Content
within the Affiliated 1-800-FLOWERS Sites violates AOL's then-standard
Terms of Service (as set forth on the America Online(R)brand service at
Keyword term "TOS"), the terms of this Agreement or any other standard,
written AOL policy or (ii) AOL reasonably objects to the inclusion of
any Content within the Affiliated 1-800-FLOWERS Sites (other than any
specific items of Content which may be expressly identified in this
Agreement), then 1-800-FLOWERS shall take commercially reasonable steps
to block access by AOL Users to such Content using 1-800-FLOWERS'
then-available technology. In the event that 1-800-FLOWERS cannot,
through its commercially reasonable efforts, block access by AOL Users
to the Content in question, then 1-800-FLOWERS shall provide AOL prompt
written notice of such fact. AOL may then, at its option, restrict
access from the AOL Network to the Content in question using technology
available to AOL. 1-800-FLOWERS shall cooperate with AOL's reasonable
requests to the extent AOL elects to implement any such access
restrictions.
3. CONTESTS. 1-800-FLOWERS shall take all steps necessary to ensure that
any contest, sweepstakes or similar promotion conducted or promoted
through the Affiliated 1-800-FLOWERS Sites (a "Contest") complies with
all applicable federal, state and local laws and regulations.
1-800-FLOWERS shall use commercially reasonable efforts to provide AOL
of at least thirty (30) days prior written notice of any such Contest.
4. NAVIGATION. Subject to the prior consent of 1-800-FLOWERS, which
consent shall not be unreasonably withheld, AOL shall be entitled to
establish navigational icons, links and pointers connecting the
Affiliated 1-800-FLOWERS Sites (or portions thereof) with other content
areas on or outside of the AOL Network. Additionally, in cases where an
AOL User performs a search for 1-800-FLOWERS through any search or
navigational tool or mechanism that is accessible or available through
the AOL Network (e.g., Promotions, Keyword Search Terms, or any other
promotions or navigational tools), AOL shall have the right to direct
such AOL User to the applicable Affiliated 1-800-FLOWERS Site, or any
other 1-800-FLOWERS Interactive Site determined by AOL in its
reasonable discretion.
5. DISCLAIMERS. Upon AOL's request, 1-800-FLOWERS agrees to include in a
prominent area to be agreed upon by the Parties of each Affiliated
1-800-FLOWERS Site, a product disclaimer to be mutually agreed upon by
the Parties and indicating that transactions are solely between
1-800-FLOWERS and AOL Users purchasing Products from 1-800-FLOWERS.
6. LOOK AND FEEL. 1-800-FLOWERS acknowledges and agrees that AOL shall own
all right, title and interest in and to the elements of
graphics, design, organization, presentation, layout, user interface,
navigation and stylistic convention (including the digital
implementations thereof) which are generally associated with online
areas contained within the AOL Network, subject to 1-800-FLOWERS'
ownership rights in any 1-800-FLOWERS trademarks or copyrighted
material within the Affiliated 1-800-FLOWERS Sites and the
1-800-FLOWERS Look and Feel. AOL acknowledges and agrees that
1-800-FLOWERS shall own all right, title and interest in and to the
1-800-FLOWERS Look and Feel and the Affiliated 1-800-FLOWERS Site,
subject to the AOL Look and Feel.
7. MANAGEMENT OF THE AFFILIATED 1-800-FLOWERS SITES. 1-800-FLOWERS shall
manage, review, delete, edit, create, update and otherwise manage all
Content available on or through the Affiliated 1-800-FLOWERS Sites, in
a timely and professional manner and in accordance with the terms of
this Agreement. 1-800-FLOWERS shall ensure that each Affiliated
1-800-FLOWERS Site is current, accurate and well-organized at all
times. 1-800-FLOWERS warrants that the Products and other Licensed
Content: (i) shall not infringe on or violate any copyright, trademark,
U.S. patent or any other third party right, including without
limitation, any music performance or other music-related rights; (ii)
shall not violate AOL's then-applicable Terms of Service or any other
standard, written AOL policy available online or otherwise provided to
1-800-FLOWERS; and (iii) shall not violate any applicable law or
regulation, including those relating to contests, sweepstakes or
similar promotions. Additionally, 1-800-FLOWERS represents and warrants
that it owns or has a valid license to all rights to any Licensed
Content used in AOL "slideshow" or other formats embodying elements
such as graphics, animation and sound, free and clear of all
encumbrances and without violating the rights of any other person or
entity. 1-800-FLOWERS also warrants that a reasonable basis exists for
all Product performance or comparison claims appearing through the
Affiliated 1-800-FLOWERS Sites. 1-800-FLOWERS shall not in any manner,
including, without limitation in any Promotion, the Licensed
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Content or the Materials state or imply that AOL recommends or endorses
1-800-FLOWERS or 1-800-FLOWERS' Products (e.g., no statements that
1-800-FLOWERS is an "official" or "preferred" provider of products or
services for AOL); PROVIDED, HOWEVER, that 1-800-FLOWERS shall have the
right (provided that 1-800-FLOWERS is in compliance with the terms and
conditions of this Agreement) upon the prior approval of AOL to state
that it is the exclusive marketer of the Exclusive Products on the AOL
Properties (as defined herein). AOL shall have no obligations with
respect to the Products available on or through the Affiliated
1-800-FLOWERS Sites, including, but not limited to, any duty to review
or monitor any such Products.
8. DUTY TO INFORM. 1-800-FLOWERS shall promptly inform AOL of any
information related to the Affiliated 1-800-FLOWERS Sites which could
reasonably lead to a claim, demand, or liability of or against AOL
and/or its affiliates by any third party.
9. CUSTOMER SERVICE.
(a) GENERAL. It is the sole responsibility of 1-800-FLOWERS to
provide customer service to persons or entities purchasing Products
through the AOL Network ("Customers"), as further described in Exhibit
H to this Agreement. 1-800-FLOWERS shall bear full responsibility for
all customer service, including without limitation, order processing,
billing, fulfillment, shipment, collection and other customer service
associated with any Products offered, sold or licensed through the
Affiliated 1-800-FLOWERS Sites, and AOL shall have no obligations
whatsoever with respect thereto. 1-800-FLOWERS shall receive all emails
from Customers via a computer available to 1-800-FLOWERS' customer
service staff and generally respond to such emails within one business
day of receipt. 1-800-FLOWERS shall receive all orders electronically
and generally process all orders within one business day of receipt,
provided Products ordered are not advance order items. 1-800-FLOWERS
shall ensure that all orders of Products are received, processed,
fulfilled and delivered on a timely and professional basis.
1-800-FLOWERS shall offer AOL Users who purchase Products through such
Affiliated 1-800-FLOWERS Sites its customary satisfaction guarantee.
1-800-FLOWERS shall bear all responsibility for compliance with
federal, state and local laws in the event that Products are out of
stock or are no longer available at the time an order is received.
1-800-FLOWERS shall also comply with the requirements of any federal,
state or local consumer protection or disclosure law. Payment for
Products shall be collected by 1-800-FLOWERS directly from customers.
1-800-FLOWERS' order fulfillment operation shall be subject to AOL's
reasonable review.
(b) CUT-OFF TIME. In addition to the customer service requirements
set forth in Section 9(a) above (as the same may be reasonably amended
by AOL from time to time), 1-800-FLOWERS shall ensure same-day delivery
for orders received before 12:30 p.m. (the "Cut-Off Time") in the time
zone in which the order is to be delivered; PROVIDED, HOWEVER, that the
Cut-Off Time may be expanded or contracted by 1-800-FLOWERS during
holiday periods due to significant changes in market demand; PROVIDED,
FURTHER, that 1-800-FLOWERS shall use all reasonable efforts to notify
AOL before the Cut-Off Time is changed. Notwithstanding the foregoing,
1-800-FLOWERS hereby acknowledges and agrees that the Cut-Off Time with
respect to AOL Purchasers shall be no earlier than the cut-off time for
any other 1-800-FLOWERS partner (except due to specific performance
failures of the AOL Network (e.g., downtime of e-mail, etc.). If
same-day service will not be feasible for a particular order,
1-800-FLOWERS hereby agrees to use its best efforts (by e-mail, phone,
etc.) to notify the customer that the order will be delivered the next
day. Next-day delivery shall always be attempted, even during busy
holiday seasons.
10. PRODUCTION WORK. In the event that 1-800-FLOWERS requests AOL's
production assistance in connection with (i) ongoing programming and
maintenance related to the Affiliated 1-800-FLOWERS Sites, (ii) a
redesign of or addition to the Affiliated 1-800-FLOWERS Sites (e.g., a
change to an existing screen format or construction of a new custom
form), (iii) production to modify work performed by a third party
provider or (iv) any other type of production work, 1-800-FLOWERS shall
work with AOL to develop a detailed production plan for the requested
production assistance (the "Production Plan"). Following receipt of the
final Production Plan, AOL shall notify 1-800-FLOWERS of (i) AOL's
availability to perform the requested production work, (ii) the
proposed fee or fee structure for the requested production and
maintenance work and (iii) the estimated development schedule for such
work. To the extent the Parties reach agreement regarding
implementation of the agreed-upon Production Plan, such agreement shall
be reflected in a separate work order signed by the Parties. To the
extent 1-800-FLOWERS elects to retain a third party provider to perform
any such production work, work produced by such third party provider
must generally conform to AOL's standards & practices (as provided on
the America Online brand service at Keyword term "styleguide"). The
specific production resources which AOL allocates to any production
work to be performed on behalf of 1-800-FLOWERS shall be as determined
by AOL in its sole discretion. With respect to any routine production,
maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning
and integration of the Affiliated 1-800-FLOWERS Sites ("Routine
Services"), 1-800-FLOWERS shall pay the then-standard fees charged by
AOL for such Routine Services.
11. OVERHEAD ACCOUNTS. To the extent AOL has granted 1-800-FLOWERS any
overhead accounts on the AOL Properties, 1-800-FLOWERS shall be
responsible for the actions taken under or through its overhead
accounts, which actions are subject to AOL's applicable Terms of
Service and for any surcharges, including, without limitation, all
premium charges, transaction charges, and any applicable communication
surcharges incurred by any overhead Account issued to 1-800-FLOWERS,
but 1-800-FLOWERS shall not be liable for charges incurred by any
overhead account relating to AOL's standard monthly usage fees and
standard hourly charges, which charges AOL shall bear. Upon the
termination of this Agreement, all overhead accounts, related screen
names and any associated usage credits or similar rights, shall
automatically terminate. AOL shall have no liability for loss of any
data or content related to the proper termination of any overhead
account.
12. NAVIGATION TOOLS. In addition to the Keyword Search Terms granted to
1-800-FLOWERS under the Original IMAs and set
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forth on Exhibit A hereto, any further Keyword Search Terms to be
directed to any Affiliated 1-800-FLOWERS Site shall be (i) subject to
availability for use by 1-800-FLOWERS and (ii) limited to the
combination of the Keyword(TM)search modifier (i.e., "Keyword:")
combined with a registered trademark of 1-800-FLOWERS. AOL reserves the
right to revoke at any time 1-800-FLOWERS' use of any Keyword Search
Terms which do not incorporate registered trademarks of 1-800-FLOWERS.
1-800-FLOWERS acknowledges that its utilization of a Keyword Search
Term shall not create in it, nor shall it represent it has, any right,
title or interest in or to such Keyword Search Term, other than the
right, title and interest 1-800-FLOWERS holds in 1-800-FLOWERS'
registered trademark independent of the Keyword Search Term. Without
limiting the generality of the foregoing, 1-800-FLOWERS shall not: (a)
attempt to register or otherwise obtain trademark or copyright
protection in the Keyword Search Term; or (b) use the Keyword Search
Term, except for the purposes expressly required or permitted under
this Agreement. To the extent AOL allows AOL Users to "bookmark" the
URL or other locator for any Affiliated 1-800-FLOWERS Site, such
bookmarks shall be subject to AOL's control at all times. Upon the
termination of this Agreement, 1-800-FLOWERS' rights to any Keyword
Search Terms and bookmarking shall terminate.
13. MERCHANT CERTIFICATION PROGRAM. 1-800-FLOWERS shall participate in any
generally applicable "Certified Merchant" program operated by AOL or
its authorized agents or contractors. Such program may require merchant
participants on an ongoing basis to meet certain reasonable, generally
applicable standards relating to provision of electronic commerce
through the AOL Network (including, as a minimum, use of 40-bit SSL
encryption and if requested by AOL, 128-bit encryption) and may also
require the payment of certain reasonable certification fees to the
applicable entity operating the program. Each Certified Merchant in
good standing shall be entitled to place on its affiliated Interactive
Site an AOL designed and approved button promoting the merchant's
status as an AOL Certified Merchant.
14. PROHIBITION OF PROMOTIONAL PROGRAMS. On the Affiliated 1-800-FLOWERS
Sites, 1-800-FLOWERS shall not offer, provide, implement or otherwise
make available any promotional programs or plans that are intended to
provide customers with rewards or benefits in exchange for, or on
account of, their past or continued loyalty to, or patronage or
purchase of, the products or services of 1-800-FLOWERS or any third
party (e.g., a promotional program similar to a "frequent flier"
program) other than travel-related or 1-800-FLOWERS' proprietary
flowers-related frequent purchasing programs, unless such promotional
program or plan is provided exclusively through AOL's "AOL Rewards"
program, accessible on the AOL Service at Keyword: "AOL Rewards"
(unless otherwise consented to by AOL, which consent shall not be
unreasonably withheld).
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EXHIBIT G
STANDARD LEGAL TERMS & CONDITIONS
1. PROMOTIONAL MATERIALS/PRESS RELEASES. Each Party shall submit to the
other Party, for its prior written approval, which shall not be unreasonably
withheld or delayed, any marketing, advertising, or other promotional materials,
related to the Affiliated 1-800-FLOWERS Sites and/or referencing the other Party
and/or its trade names, trademarks, and service marks (the "Promotional
Materials"); PROVIDED, HOWEVER, that either Party's use of screen shots of the
Affiliated 1-800-FLOWERS Sites for promotional purposes shall not require the
approval of the other Party so long as America Online(R) is clearly identified
as the source of such screen shots; PROVIDED, FURTHER, that following the
initial public announcement of the business relationship between the Parties in
accordance with the approval and other requirements contained herein, either
Party's subsequent factual reference to the existence of a business relationship
between the Parties in Promotional Materials, shall not require the approval of
the other Party. Each Party shall solicit and reasonably consider the views of
the other Party in designing and implementing such Promotional Materials. Once
approved, the Promotional Materials may be used by a Party and its affiliates
for the purpose of promoting the Affiliated 1-800-FLOWERS Sites and the content
contained therein and reused for such purpose until such approval is withdrawn
with reasonable prior notice. In the event such approval is withdrawn, existing
inventories of Promotional Materials may be depleted. It is agreed and
understood that the Parties shall work together to prepare a press release to be
issued as soon as reasonably possible following the execution of this Agreement,
and in no event, more than ten (10) business days thereafter (unless otherwise
required by applicable law).
2. LICENSE. During the Term, 1-800-FLOWERS hereby grants AOL a
non-exclusive worldwide license to market, license, distribute, reproduce,
display, perform, transmit and promote the Licensed Content (or any portion
thereof) through such areas or features of the AOL Network as AOL deems
appropriate solely in accordance with the terms and conditions hereof.
1-800-FLOWERS acknowledges and agrees that the foregoing license permits AOL to
distribute portions of the Licensed Content in synchronism or timed relation
with visual displays prepared by 1-800-FLOWERS or AOL on behalf of 1-800-FLOWERS
at 1-800-FLOWERS' request (e.g., as part of an AOL "slideshow"). Subject to such
license, 1-800-FLOWERS retains all right, title and interest in the Licensed
Content. In addition, AOL Users shall have the right to access and use the
Affiliated 1-800-FLOWERS Sites.
3. TRADEMARK LICENSE. In designing and implementing the Materials and
subject to the other provisions contained herein, 1-800-FLOWERS shall be
entitled to use the following trade names, trademarks, and service marks of
AOL and CompuServe (respectively): the "America Online(R)" brand service,
"AOL-TM-" service/software, AOL's triangle logo and the "CompuServe"
trademark; and AOL and its affiliates shall be entitled to use the trade
names, trademarks, and service marks of 1-800-FLOWERS for which 1-800-FLOWERS
holds all rights necessary for use in connection with this Agreement (e.g.,
1-800-Flowers, Gift Concierge Service, World's Favorite Florist, Freshness
Care System, Fresh Thoughts, 0-000-XXXXXXX.xxx, Gardenworks, etc.)
(collectively, together with the AOL marks listed above, the "Marks");
provided that each Party: (i) does not create a unitary composite xxxx
involving a Xxxx of the other Party without the prior written approval of
such other Party; and (ii) displays symbols and notices clearly and
sufficiently indicating the trademark status and ownership of the other
Party's Marks in accordance with applicable trademark law and practice.
4. OWNERSHIP OF TRADEMARKS. Each Party acknowledges the ownership right of
the other Party in the Marks of the other Party and agrees that all use of the
other Party's Marks shall inure to the benefit, and be on behalf, of the other
Party. Each Party acknowledges that its utilization of the other Party's Marks
shall not create in it, nor shall it represent it has, any right, title, or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party (including, without limitation, seeking to register
the other Party's Marks as part of a composite xxxx).
5. QUALITY STANDARDS. Each Party agrees that the nature and quality of its
products and services supplied in connection with the other Party's Marks shall
conform to quality standards set by the other Party. Each Party agrees to supply
the other Party, upon request, with a reasonable number of samples of any
Materials publicly disseminated by such Party which utilize the other Party's
Marks. Each Party shall comply with all applicable laws, regulations, and
customs and obtain any required government approvals pertaining to use of the
other Party's marks.
6. INFRINGEMENT PROCEEDINGS. Each Party agrees to promptly notify the
other Party of any unauthorized use of the other Party's Marks of which it has
actual knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party
with its reasonable cooperation and assistance with respect to any such
infringement proceedings.
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CONFIDENTIAL
7. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to
the other Party that: (i) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
shall not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
shall constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; and (iv) such Party
acknowledges that the other Party makes no representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in this Agreement. 1-800-FLOWERS hereby represents and warrants that it
possesses all authorizations, approvals, consents, licenses, permits,
certificates or other rights and permissions necessary to sell the Products.
8. CONFIDENTIALITY. Each Party acknowledges that Confidential Information
may be disclosed to the other Party during the course of this Agreement. Each
Party agrees that it shall take reasonable steps, at least substantially
equivalent to the steps it takes to protect its own proprietary information,
during the term of this Agreement, and for a period of two (2) years following
expiration or termination of this Agreement, to prevent the duplication or
disclosure of Confidential Information of the other Party, other than by or to
its employees or agents who must have access to such Confidential Information to
perform such Party's obligations hereunder, who shall each agree to comply with
this section. Notwithstanding the foregoing, either Party may issue a press
release or other disclosure containing Confidential Information without the
consent of the other Party, to the extent such disclosure is required by law,
rule, regulation or government or court order. In such event, the disclosing
Party shall 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 shall
(i) redact mutually agreed-upon portions of this Agreement to the fullest extent
permitted under applicable laws, rules and regulations and (ii) submit a request
to such governing body that such portions and other provisions of this Agreement
receive confidential treatment under the laws, rules and regulations of the
Securities and Exchange Commission or otherwise be held in the strictest
confidence to the fullest extent permitted under the laws, , rules or
regulations of any other applicable governing body.
9. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
(a) LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE
OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, XXX.XXX OR THE
AFFILIATED 1-800-FLOWERS SITES, OR ARISING FROM ANY OTHER PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT
EACH PARTY SHALL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY
DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO
INDEMNIFICATION PURSUANT TO SECTION 9(c). EXCEPT AS PROVIDED IN SECTION 9(c),
(I) LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT,
OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY
TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT
SHALL BE THE AGGREGATE AMOUNT OF PAYMENT OBLIGATIONS TO BE PAID TO AOL BY
1-800-FLOWERS HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE TO THE
LIABILITY OCCURS; PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT
TO THE AGREEMENT.
(b) NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING
THE AOL NETWORK, THE AOL SERVICE, XXX.XXX OR THE AFFILIATED 1-800-FLOWERS
SITES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF THE
AFFILIATED 1-800-FLOWERS SITES.
(c) INDEMNITY. Either Party shall defend, indemnify, save and hold harmless
the other Party and the officers, directors, agents, affiliates,
distributors, franchisees and employees of the other Party from any and all
third party claims, demands, liabilities, costs or expenses, including
reasonable attorneys' fees ("Liabilities"), resulting from the indemnifying
Party's material breach of any duty, representation, or warranty of this
Agreement.
(d) CLAIMS. If a Party entitled to indemnification hereunder (the
"Indemnified Party") becomes aware of any matter it believes is
indemnifiable hereunder involving any claim, action, suit,
investigation, arbitration or other proceeding against the Indemnified
Party by any third party (each an "Action"), the Indemnified Party
shall give the other Party (the "Indemnifying Party") prompt written
notice of such Action. Such notice shall (i) provide the basis on which
indemnification is being asserted and (ii) be accompanied by copies of
all relevant pleadings, demands, and other papers related to the Action
and in the possession of the Indemnified Party. The Indemnifying Party
shall have a period of ten (10) days after delivery
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of such notice to respond. If the Indemnifying Party elects to defend the
Action or does not respond within the requisite ten (10) day period, the
Indemnifying Party shall be obligated to defend the Action, at its own
expense, and by counsel reasonably satisfactory to the Indemnified Party. The
Indemnified Party shall cooperate, at the expense of the Indemnifying Party,
with the Indemnifying Party and its counsel in the defense and the
Indemnified Party shall have the right to participate fully, at its own
expense, in the defense of such Action. If the Indemnifying Party responds
within the required ten (10) day period and elects not to defend such Action,
the Indemnified Party shall be free, without prejudice to any of the
Indemnified Party's rights hereunder, to compromise or defend (and control
the defense of) such Action. In such case, the Indemnifying Party shall
cooperate, at its own expense, with the Indemnified Party and its counsel in
the defense against such Action and the Indemnifying Party shall have the
right to participate fully, at its own expense, in the defense of such
Action. Any compromise or settlement of an Action shall require the prior
written consent of both Parties hereunder, such consent not to be
unreasonably withheld or delayed.
10. ACKNOWLEDGMENT. AOL and 1-800-FLOWERS each acknowledges that the
provisions of this Agreement were negotiated to reflect an informed, voluntary
allocation between them of all risks (both known and unknown) associated with
the transactions contemplated hereunder. The limitations and disclaimers related
to warranties and liability contained in this Agreement are intended to limit
the circumstances and extent of liability. The provisions of this Section 10
shall be enforceable independent of and severable from any other enforceable or
unenforceable provision of this Agreement.
11. SOLICITATION OF AOL USERS. During the term of the Agreement and for a
one (1) year period following the expiration or termination of this Agreement,
1-800-FLOWERS shall not use the AOL Network (including, without limitation, the
e-mail network contained therein) to solicit AOL Users on behalf of another
Interactive Service. More generally, 1-800-FLOWERS shall not send unsolicited,
commercial e-mail (i.e., "spam") or other online communications through or into
AOL's products or services, absent a Prior Business Relationship. For purposes
of this Agreement, a "Prior Business Relationship" shall mean that the AOL User
to whom commercial e-mail or other online communication is being sent has
voluntarily either (i) engaged in a transaction with 1-800-FLOWERS or (ii)
provided information to 1-800-FLOWERS through a contest, registration, or other
communication, which included reasonably clear notice to the AOL User that the
information provided could result in commercial e-mail or other online
communication being sent to that AOL User by 1-800-FLOWERS or its agents. Any
commercial e-mail or other online communications to AOL Users which are
otherwise permitted hereunder, shall (a) include a prominent and reasonably easy
means to "opt-out" of receiving any future commercial communications from
1-800-FLOWERS, and (b) shall also be subject to AOL's then-standard restrictions
on distribution of bulk e-mail (e.g., related to the time and manner in which
such e-mail can be distributed through or into the AOL product or service in
question).
12. AOL USER COMMUNICATIONS. During the Term of this Agreement and for a
period of one (1) year thereafter, to the extent that 1-800-FLOWERS is permitted
to communicate with AOL Users under Section 11 of this Exhibit G, in any such
communications to AOL Users on or (specifically targeting AOL Users) off the
Affiliated 1-800-FLOWERS Sites (including, without limitation, e-mail
solicitations), 1-800-FLOWERS shall not encourage AOL Users to use an
Interactive Site other than the Affiliated 1-800-FLOWERS Sites for the purchase
of Products, (ii) using Content other than the Licensed Content; (iii)
bookmarking of Interactive Sites; or (iv) changing the default home page on the
AOL browser. Additionally, with respect to such AOL User communications, in the
event that 1-800-FLOWERS encourages an AOL User to purchase products through
such communications, 1-800-FLOWERS shall ensure that (a) the AOL Network is
promoted as the primary means through which the AOL User can access the
Affiliated 1-800-FLOWERS Sites and (b) any link to any Affiliated 1-800-FLOWERS
Site shall link to a page which indicates to the AOL User that such user is in a
site which is affiliated with the AOL Network.
13. COLLECTION AND USE OF USER INFORMATION. 1-800-FLOWERS shall ensure that
its collection, use and disclosure of information obtained from AOL Users under
this Agreement and through any Affiliated 1-800-FLOWERS Site ("User
Information") complies with (i) all applicable laws and regulations and (ii)
AOL's standard privacy policies, available on the AOL Service at the keyword
term "Privacy" (or, in the case of the Affiliated 1-800-FLOWERS Sites,
1-800-FLOWERS' standard privacy policies so long as such policies are
prominently published on the site and provide adequate notice, disclosure and
choice to users regarding 1-800-FLOWERS' collection, use and disclosure of user
information). 1-800-FLOWERS shall not disclose User Information collected
hereunder to any third party in a manner that identifies AOL Users as end users
of an AOL product or service or during the Term (and thereafter, to the extent
expressly provided for herein) use Member Information collected under this
Agreement to market another Interactive Service.
14. EXCUSE. Neither Party shall be liable for, or be considered in breach
of or default under this Agreement on account of, any delay or failure to
perform as required by this Agreement as a result of any causes or conditions
which are beyond such Party's reasonable control and which such Party is unable
to overcome by the exercise of reasonable diligence.
15. INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or employee of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
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16. NOTICE. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing and
shall be deemed to have been delivered and given for all purposes (i)
on the delivery date if delivered by electronic mail on the AOL Network
(to screenname "XXXXxxxxx@XXX.xxx" in the case of AOL) or by confirmed
facsimile; (ii) on the delivery date if delivered personally to the
Party to whom the same is directed; (iii) one business day after
deposit with a commercial overnight carrier, with written verification
of receipt; or (iv) five business days after the mailing date, whether
or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid
mail delivery for which a receipt is available. In the case of AOL,
such notice shall be provided to both the Senior Vice President for
Business Affairs (fax no. 000-000-0000) and the Deputy General Counsel
(fax no. 000-000-0000), each at the address of AOL set forth in the
first paragraph of this Agreement. In the case of 1-800-FLOWERS, except
as otherwise specified herein, the notice address shall be the address
for 1-800-FLOWERS set forth in the first paragraph of this Agreement
(to the attention of Xxxxx XxXxxx and with a copy to Xxxxx Xxxxxxxxx,
Esq.), with the other relevant notice information, including the
recipient's fax number or AOL e-mail address, to be as reasonably
identified by AOL.
17. NO WAIVER. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to
exercise any right under this Agreement shall not be construed as a
waiver or relinquishment to any extent of such Party's right to assert
or rely upon any such provision or right in that or any other instance;
rather, the same shall be and remain in full force and effect.
18. RETURN OF INFORMATION. Upon the expiration or termination of this
Agreement, each Party shall, upon the written request of the other
Party, return or destroy (at the option of the Party receiving the
request) all confidential information, documents, manuals and other
materials specified the other Party.
19. SURVIVAL. Section 4 (to the extent any such amounts are due and payable
pursuant to the terms of this Agreement) and Section 6 of the body of
the Agreement, and Sections 8, 9, 11, 12, 13, 16, 19, 24, 25 and 26 of
this Exhibit G, (and any other Sections shall survive the completion,
expiration, termination or cancellation of this Agreement.
20. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
supersedes any and all prior agreements of the Parties with respect to
the transactions set forth herein. Neither Party shall be bound by, and
each Party specifically objects to, any term, condition or other
provision which is different from or in addition to the provisions of
this Agreement (whether or not it would materially alter this
Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
21. AMENDMENT. No change, amendment or modification of any provision of
this Agreement shall be valid unless set forth in a written instrument
signed by the Party subject to enforcement of such amendment, and in
the case of either Party, by an executive with a title of at least
Senior Vice President.
22. FURTHER ASSURANCES. Each Party shall take such action (including, but
not limited to, the execution, acknowledgment and delivery of
documents) as may reasonably be requested by any other Party for the
implementation or continuing performance of this Agreement.
23. ASSIGNMENT. Except for the assignment transfer or delegation by either
Party to an affiliate by way of merger, consolidation or sale of all
(or substantially all) of such party's outstanding voting securities or
assets, neither Party shall assign this Agreement or any right,
interest or benefit under this Agreement without the prior written
consent of the other Party. Subject to the foregoing, this Agreement
shall be fully binding upon, inure to the benefit of and be enforceable
by the Parties hereto and their respective successors and assigns.
24. CONSTRUCTION; SEVERABILITY. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be
construed or if any such provision is held invalid by a court with
jurisdiction over the Parties to this Agreement, (i) such provision
shall be deemed to be restated to reflect as nearly as possible the
original intentions of the Parties in accordance with applicable law,
and (ii) the remaining terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect.
25. REMEDIES. Except where otherwise specified, the rights and remedies
granted to a Party under this Agreement are cumulative and in addition
to, and not in lieu of, any other rights or remedies which the Party
may possess at law or in equity; provided that, in connection with any
dispute hereunder, Neither Party shall be entitled to offset any
amounts that it claims to be due and payable from the other Party
against amounts otherwise payable by the other Party to such Party.
26. APPLICABLE LAW. Except as otherwise expressly provided herein, this
Agreement shall be interpreted, construed and enforced in all respects
in accordance with the laws of the State of New York except for its
conflicts of laws principles.
27. EXPORT CONTROLS. Both Parties shall adhere to all applicable laws,
regulations and rules relating to the export of technical data and
shall not export or re-export any technical data, any products received
from the other Party or the direct product of such technical data to
any proscribed country listed in such applicable laws, regulations and
rules unless properly authorized.
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28. HEADINGS. The captions and headings used in this Agreement are inserted
for convenience only and shall not affect the meaning or interpretation
of this Agreement.
29. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same document.
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EXHIBIT H
CUSTOMER SERVICE REQUIREMENTS
1. Commercially reasonable best efforts to process orders
electronically within one (1) hour from receipt (if between 7A.M.
and 7P.M. EST) and to promptly transmit orders to the receiving
supplier.
2. Deliver all merchandise in professional packaging. All packages
should arrive undamaged, well packed and neat (barring any
shipping disasters).
3. Make available customer service personnel dedicated to the online
medium (i.e., people whose primary concern is the online
customer's orders) and make at least one customer service
representative available from 9:00 p.m. - midnight E.S.T. during
the week before each peak holiday period such as Thanksgiving,
Christmas/Chanukkah, Valentine's Day, Easter, Mother's Day, New
Years and Secretaries' Week, to answer questions in an "online
conference room" set up specifically for the relevant
1-800-FLOWERS store. Online customers shall be given as much
priority as customers coming through any other sales channel.
4. Respond promptly and professionally to questions, comments,
complaints and other reasonable requests from AOL Members
regarding the Products, including, at a minimum, best efforts to
receive and respond to e-mails within twenty-four (24) hours of
receipt via a computer available to the customer service staff.
5. Provide the customer with an order confirmation within twenty-four
(24) hours of receipt. Order confirmation should include any
information such order status (temporary back order or out of
stock situations), and expected delivery times.
6. Have the ability to handle volumes in excess of twenty-five
percent (25%) to fifty percent (50%) of 1-800-FLOWERS' average
daily order volumes.
7. Regularly monitor on-line store to minimize/eliminate the
promotion of out-of-stock merchandise.
8. Ship the displayed product at the price displayed in any
Affiliated 1-800-FLOWERS Site without substituting.
9. Offer all AOL Purchasers a 100% satisfaction guarantee, pursuant
to which, 1-800-FLOWERS agrees to replace or refund orders upon
such AOL Purchaser's or AOL's request, in accordance with
1-800-FLOWERS' standard customer service policy.
10. Comply with all applicable disclosure laws.
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EXHIBIT I
CO-BRANDING REQUIREMENTS ON THE 1-800-FLOWERS AFFILIATED SITES
I. AOL SERVICE. The AOL Service will maintain the current co-branding as
in effect under the Original IMA (including, without limitation, the
use of the "Rainman" screens).
II. XXX.XXX. 1-800-FLOWERS shall maintain a version of the principal
1-800-FLOWERS Interactive Site customized for distribution through
XXX.xxx (the "1-800-FLOWERS/XXX.xxx Site") by (w) developing the
1-800-FLOWERS/XXX.xxx Site as a "cul de sac" site containing no links
outside of the 1-800-FLOWERS/XXX.xxx Site other than to XXX.xxx, other
AOL or third party Content determined by AOL, or advertisements
permitted under this Agreement, (x) displaying on each page of the
1-800-FLOWERS/XXX.xxx Site headers and footers of size and type
determined by AOL and which contain both XXX.xxx and 1-800-FLOWERS
branding, links to XXX.xxx, a Netfind search box and two (2)
promotional spaces to be programmed by AOL, (y) programming each page
of the 1-800-FLOWERS/XXX.xxx Site with a co-branded domain name (e.g.,
0000Xxxxxxx.xxx.xxx) and (z) matching the look and feel of XXX.xxx on
the 1-800-FLOWERS/XXX.xxx Site. All registration and community-related
utilities and functionality (including, without limitation, chat,
message boards, and web page community services such as AOL Hometown)
shall be managed by AOL. The 1-800-FLOWERS/XXX.xxx Site shall contain
Content of substantially the same quality, scope, functionality, terms
and conditions as the Content on any other 1-800-FLOWERS Interactive
Site. 1-800-FLOWERS will, in accordance with the Programming Plan, and
subject to the terms of this Agreement, (1) provide AOL with Content
for the areas and screens of XXX.xxx described in the Programming Plan,
and (2) program and manage the Content on the 1-800-FLOWERS/XXX.xxx
Site for distribution through XXX.xxx. All terms and conditions of this
Agreement applicable to any 1-800-FLOWERS Interactive Site shall apply
to the 1-800-FLOWERS/XXX.xxx Site except as expressly otherwise stated.
III. COMPUSERVE SERVICE. 1-800-FLOWERS shall maintain a version of the
principal 1-800-FLOWERS Interactive Site customized for distribution
through the CompuServe Service (the "1-800-FLOWERS/CIS Site") by (w)
developing the 1-800-FLOWERS/CIS Site as a "cul de sac" site containing
no links outside of the 1-800-FLOWERS/CIS Site other than to the
CompuServe Service, other AOL or third party Content determined by AOL,
or advertisements permitted under this Agreement, (x) displaying on
each page of the 1-800-FLOWERS/CIS Site headers and footers of size and
type determined by AOL or CompuServe and which contain both CIS and
1-800-FLOWERS branding, links to the CompuServe Service and two (2)
promotional spaces to be programmed by AOL or CompuServe, (y)
programming each page of the 1-800-FLOWERS/CIS Site with a co-branded
domain name (e.g., 0000Xxxxxxx.xxxxxxxxxx.xxx) and (z) matching the
look and feel of the CompuServe Service on the 1-800-FLOWERS/CIS Site.
All registration and community-related utilities and functionality
(including, without limitation, chat, message boards, and web page
community services) shall be managed by AOL or CompuServe. The
1-800-FLOWERS/CIS Site shall contain Content of substantially the same
quality, scope, functionality, terms and conditions as the Content on
any other 1-800-FLOWERS Interactive Site. 1-800-FLOWERS will, in
accordance with the Programming Plan, and subject to the terms of this
Agreement, (1) provide AOL with Content for the areas and screens of
the CompuServe Service described in the Programming Plan, and (2)
program and manage the Content on the 1-800-FLOWERS/CIS Site for
distribution through the CompuServe Service. All terms and conditions
of this Agreement applicable to any 1-800-FLOWERS Interactive Site
shall apply to the 1-800-FLOWERS/CIS Site except as expressly otherwise
stated.
IV. NETSCAPE NETCENTER. The Service Pages will be co-branded by Netscape
and 1-800-FLOWERS. The co-branding will be subject to Netscape's
Guidelines and will include 1-800-FLOWERS' company name and logo.
Furthermore, 1-800-FLOWERS shall take reasonable efforts to ensure that
Netscape traffic is generally either kept within the Service Pages or
channeled back into Netcenter. To the extent that Netscape notifies
Participant in writing that, in Netscape's reasonable judgment, links
from the Service Pages cause an excessive amount of
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user traffic to be diverted outside of such site and Netscape Netcenter
in a manner that has a detrimental effect on the traffic flow of the
user audience, then 1-800-FLOWERS shall immediately reduce the number
of links out of such site(s). In the event that 1-800-FLOWERS cannot or
does not so limit diverted traffic from such site, Netscape (or AOL, as
the case may be) reserves the right to take control of the relevant
Service Pages. For purposes of these co-branding requirements, "Service
Pages" shall mean all pages of the specific area within the Netscape
Network which shall be developed, managed or marketed by 1-800-FLOWERS
pursuant to this Agreement, including but not limited to the Licensed
Content, any functionality or services, message boards, chat and other
Netscape Member-supplied content areas contained therein (but excluding
any site or area outside of Netscape Netcenter that is linked to
Netscape Netcenter (through a "pointer" or similar link) in accordance
with the terms and conditions of this Agreement.).
V. ICQ SERVICE. 1-800-FLOWERS shall maintain a version of the principal
1-800-FLOWERS Interactive Site customized for distribution through the
ICQ Service (the "1-800-FLOWERS/ICQ Site") by (w) developing the
1-800-FLOWERS/ICQ Site as a "cul de sac" site containing no links
outside of the 1-800-FLOWERS/ICQ Site other than to the ICQ Service,
other AOL or third party Content determined by AOL, or advertisements
permitted under this Agreement, (x) displaying on each page of the
1-800-FLOWERS/ICQ Site headers and footers of size and type determined
by AOL and which contain both ICQ and 1-800-FLOWERS branding, links to
the ICQ Service and two (2) promotional spaces to be programmed by AOL,
(y) programming each page of the 1-800-FLOWERS/ICQ Site with a
co-branded domain name (e.g., 0000Xxxxxxx.xxx.xxx) and (z) matching the
look and feel of the ICQ Service on the 1-800-FLOWERS/ICQ Site. All
registration and community-related utilities and functionality
(including, without limitation, chat, message boards, and web page
community services) shall be managed by AOL or ICQ. The
1-800-FLOWERS/ICQ Site shall contain Content of substantially the same
quality, scope, functionality, terms and conditions as the Content on
any other 1-800-FLOWERS Interactive Site. 1-800-FLOWERS will, in
accordance with the Programming Plan, and subject to the terms of this
Agreement, (1) provide AOL with Content for the areas and screens of
the ICQ Service described in the Programming Plan, and (2) program and
manage the Content on the 1-800-FLOWERS/ICQ Site for distribution
through the ICQ Service. All terms and conditions of this Agreement
applicable to any 1-800-FLOWERS Interactive Site shall apply to the
1-800-FLOWERS/ICQ Site except as expressly otherwise stated.
VI. DIGITAL CITY. 1-800-FLOWERS shall maintain a version of the principal
1-800-FLOWERS Interactive Site customized for distribution through the
CompuServe Service (the "1-800-FLOWERS/DCI Site") by (w) developing the
1-800-FLOWERS/DCI Site as a "cul de sac" site containing no links
outside of the 1-800-FLOWERS/DCI Site other than to Digital City, other
AOL or third party Content determined by AOL, or advertisements
permitted under this Agreement, (x) displaying on each page of the
1-800-FLOWERS/DCI Site headers and footers of size and type determined
by AOL and which contain both DCI and 1-800-FLOWERS branding, links to
Digital City and two (2) promotional spaces to be programmed by AOL,
(y) programming each page of the 1-800-FLOWERS/DCI Site with a
co-branded domain name (e.g., 0000Xxxxxxx.xxxxxxxxxxx.xxx) and (z)
matching the look and feel of Digital City on the 1-800-FLOWERS/DCI
Site. All registration and community-related utilities and
functionality (including, without limitation, chat, message boards, and
web page community services) shall be managed by AOL. The
1-800-FLOWERS/DCI Site shall contain Content of substantially the same
quality, scope, functionality, terms and conditions as the Content on
any other 1-800-FLOWERS Interactive Site. 1-800-FLOWERS will, in
accordance with the Programming Plan, and subject to the terms of this
Agreement, (1) provide AOL with Content for the areas and screens of
Digital City described in the Programming Plan, and (2) program and
manage the Content on the 1-800-FLOWERS/DCI Site for distribution
through Digital City. All terms and conditions of this Agreement
applicable to any 1-800-FLOWERS Interactive Site shall apply to the
1-800-FLOWERS/DCI Site except as expressly otherwise stated.
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EXHIBIT J
CATEGORIES OF GARDENING-RELATED ITEMS TO BE OFFERED
ON THE 1-800-FLOWERS AFFILIATED SITES
GARDEN
------
Annuals
Books / Videos related to gardening
Bulbs
Seeds
Composting
Fencing
Edging
Apparel related to gardening
Footwear related to gardening
Lawn Care
Perennials
Vines
Pest Control
Indoor Plants
Roses
Tools
Supplies related to gardening
Trees
Shrubs
Trellises
Arbors
Pottery related to gardening
Vases
Tropical Plants
Water Gardening
OUT DOOR LIVING
---------------
Birds / Nature
Doormats / Rugs
Fireplace
Furniture
Lighting
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EXHIBIT K
1-800-FLOWERS COMPETITORS
- [****]
- The above entities also include any of their affiliates whose primary
business is the sale of fresh-cut flowers. During the Fresh-Cut Flowers
Exclusivity Period, 1-800-FLOWERS can replace any of the above entities
with another entity whose primary business is the sale of fresh-cut
flowers, Plants, or Gardening Plants.
**** Represents material which has been redacted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
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