CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY [*]. THE
CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
INTERACTIVE MARKETING AGREEMENT
This Interactive Marketing Agreement (the "Agreement"), is made and
entered into as of July 1, 1998 (the "Effective Date"), by and between America
Online, Inc. ("AOL"), a Delaware corporation, with offices at 00000 XXX Xxx,
Xxxxxx, Xxxxxxxx 00000, and NetGrocer Inc. ("Marketing Partner" or "MP") , a
Delaware corporation, with offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(each a "Party" and collectively the "Parties.")
INTRODUCTION
AOL and MP each desires to enter into an interactive marketing
relationship whereby AOL will promote the MP Products through the interactive
site referred to (and further defined) herein as the Affiliated MP Site. This
relationship is further described below and is subject to the terms and
conditions set forth in this Agreement. Defined terms used herein but not
defined in the body of the Agreement shall be as defined in Exhibit B attached
hereto.
TERMS
1 PROMOTION, DISTRIBUTION AND MARKETING.
1.1 AOL PROMOTION OF MP PRODUCTS AND AFFILIATED MP SITE. During the Term,
AOL will provide MP with the promotions for the MP Products and
Affiliated MP Site described in Exhibit A attached hereto (the
"Promotions"). Subject to MP's reasonable approval, AOL will have the
right to fulfill its promotional commitments with respect to any of
the foregoing by providing MP with comparable promotional placements
in appropriate alternative areas of the AOL Network. In addition, if
AOL is unable to deliver any particular Promotion, AOL will work with
MP to provide MP, as its sole remedy, with a comparable promotional
placement, subject to MP's reasonable approval. 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 will work with MP to provide MP, as its sole
remedy, with a comparable promotional placement.
1.2 IMPRESSIONS.
1.2.1 AOL Service Promotions. During the AOL Service Exclusivity
Period (as defined herein), AOL will deliver [*] Impressions
through the Promotions or any approved comparable promotions as
provided in Section 1.1 above, on the AOL Service (the "AOL
Service Impressions"). If at the end of the first or second year
of this Agreement there is a shortfall in the AOL Service
Impressions (other than a Final Shortfall) which is greater than
or equal to [*] of the annual Impressions amounts to be
delivered by AOL with respect to the AOL Service Promotions as
provided in Exhibit A (an "AOL Service Minor Shortfall"), and
provided that such AOL Service Minor Shortfall is not in any
material way due to an unusual or unreasonable combination of
demographic variables (in relation to the demographic makeup of
the overall AOL Service audience) chosen by MP in accordance
with Exhibit A, AOL shall have a reasonable amount of time, not
to exceed [*] days (the "Makegood Period"), within which to
deliver an amount of AOL Service Impressions equal to the AOL
Service Minor Shortfall. If AOL shall not have delivered such
Impressions during the Makegood Period, [*] that AOL was unable
to deliver during the Makegood Period until such time as the AOL
Service Minor Shortfall shall have been cured by AOL.
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1.2.2 XXX.xxx Promotions. Unless otherwise agreed upon by the Parties,
during the XXX.xxx Exclusivity Period (as defined herein), AOL
will deliver [*] Impressions through the Promotions or any
approved comparable promotions as provided in Section 1.1 above,
on XXX.xxx (the "XXX.xxx Impressions" and together with the AOL
Service Impressions, the "Impressions Commitment"). If at the
end of the first or second year of this Agreement there is a
shortfall in the XXX.xxx Impressions (other than a Final
Shortfall) which is greater than or equal to [*] of the annual
Impressions amounts to be delivered by AOL with respect to the
XXX.xxx Promotions as provided in Exhibit A (an "XXX.xxx Minor
Shortfall"), during the Makegood Period, AOL shall deliver an
amount of XXX.xxx Impressions equal to the XXX.xxx Minor
Shortfall. If AOL shall not have delivered such Impressions
during the Makegood Period, [*] that AOL was unable to deliver
during the Makegood Period until such time as the XXX.xxx Minor
Shortfall shall have been cured by AOL.
1.2.3 Impressions Commitment. With respect to the Impressions
Commitment specified above, in the event there is a shortfall in
Impressions as of the end of the Initial Term (a "Final
Shortfall"), and provided that MP shall not have recouped the
payments due pursuant to Section 4.1, AOL shall extend the
Initial Term (the "Extension Period") [*] Except for the quarter
immediately following the Effective Date, AOL shall use
commercially reasonable efforts to deliver the Impressions
provided for herein [*] of the AOL Exclusivity Period and the
XXX.xxx Exclusivity Period, provided that with respect to the
AOL Service Promotions, MP does not select an unusual or
unreasonable combination of demographic variables (in relation
to the demographic makeup of the overall AOL Service audience)
which prevents AOL from materially complying with the foregoing.
If at any time during the Term MP shall not be in compliance
with the provisions of this Agreement, and as a result of such
non-compliance AOL is unable to provide the Impressions required
hereunder during such period of non-compliance (the
"Non-Compliance Period"), then, to the extent AOL is not at
fault for such non-compliance, AOL shall have the right to
reduce the Impressions Commitment, on a pro-rata basis, during
the Non-Compliance Period (e.g., if the Non-Compliance Period
extends for a period of two (2) months, then AOL shall reduce
the Impressions Commitment by an amount equal to the product of
two (2) times the Impressions Commitment divided by thirty seven
(37)); provided, however, that prior to the imposition of such
reduction, AOL shall notify MP of such non-compliance and
provide MP with a reasonable period (not to exceed thirty (30)
days) in which to remedy the non-compliance, with the reasonable
assistance of AOL, as appropriate.
1.3 CONTENT OF PROMOTIONS. The specific Content to be contained within the
Promotions (including, without limitation, advertising banners and
contextual promotions) (the "Promo Content") will be determined by MP in
its sole discretion, subject to (i) AOL's technical limitations, (ii) the
terms of this Agreement and (iii) AOL's then generally -applicable
policies relating to advertising and promotions. The Parties will jointly
consult with each other regarding the Promo Content to ensure that it is
designed to maximize performance. MP will use all reasonable efforts to
consistently review the Promo Content no less than two times per week and
MP shall promptly update the Promo Content if the Parties mutually
determine that an update is needed. Except to the extent expressly
described herein, the specific form, placement and duration of the
Promotions will be as determined by AOL in its reasonable editorial
discretion (consistent with the editorial composition of the applicable
screens).
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1.4 USE OF PROMOTIONS. MP may sell the promotional spaces provided herein to
third parties in a manner consistent with its ongoing business practices,
provided that any promotional spaces sold to a third party (i) may only
promote the sale of the MP Products and (ii) must promote the sale of such
MP Products through the Affiliated MP Site. Except to the extent expressly
provided in the preceding sentence, MP may not, nor shall it permit any
third party to, sell or offer to sell any of the promotional spaces
provided to MP herein.
1.5 MP PROMOTION OF AOL. MP will promote the availability of the MP Affiliated
Site through the AOL Network and will promote AOL as more fully set forth
in Exhibit C attached hereto. MP will not implement or authorize any other
promotion on behalf of any third party which is more favorable (taking
into account, without limitation, scope, purpose, amount, prominence and
regularity) than the promotion required pursuant to Exhibit C for any
other Interactive Service.
2 AFFILIATED MP SITE.
2.1 CUSTOMIZED SITE. The Affiliated MP Site shall be an optimized and
customized version of MP's main web site containing the specific
Content described in Section 2.2 below for distribution hereunder
according to AOL specifications and guidelines to ensure that (i) the
functionality and features within the Affiliated MP Site are
optimized for the client software then in use by a majority of AOL
Members and (ii) the forms used in the Affiliated MP Site are
designed and populated in a manner intended to minimize delays when
AOL Users attempt to access such forms. In connection with the
foregoing, AOL will provide MP with notification of changes and
updates in technology and functionality in accordance with its
generally applicable procedures for notifying AOL's other partners of
such changes and updates, and after receipt of such notification, MP
shall have a reasonable amount of time (not to exceed thirty (30)
days) within which to effectuate such changes and updates.
2.1.1 Specific Requirements.
(i) MP shall design the Affiliated MP Site to conform, in all
respects, with the provisions of Exhibit E attached hereto,
and
(ii) AOL reserves the right to review the Affiliated MP Site to
ensure that such site is compatible with AOL's
then-available client and host software and the AOL
Network. MP will take all commercially reasonable steps to
conform its promotion and sale of the MP Products through
the Affiliated MP Site to the then-existing technologies
identified by AOL which are optimized for the AOL Network.
AOL will be entitled to require reasonable changes to the
Content (including, without limitation, the features or
functionality) within any linked pages of the Affiliated MP
Site to the extent such Content will, in AOL's good faith
judgment, adversely affect any operational aspect of the
AOL Network or the online experience of AOL Users. The
Parties hereby acknowledge that as of the Effective Date,
AOL has conducted a technical due diligence review of the
Affiliated MP Site and within a reasonable period of time
following the Effective Date [*], AOL will be able to begin
providing the Promotions on the AOL Service and XXX.xxx as
provided herein.
2.1.2 Customization. MP shall customize the Affiliated MP Site for
AOL Members as follows:
(i) create a customized home page "welcome mat" for the AOL
audience for each area on the Affiliated MP Site linked to
the AOL Network on a continuous basis (each a "Welcome
Mat");
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(ii) ensure that AOL Users linking to the Affiliated MP Site do
not receive advertisements, promotions or links for any
other Interactive Service or any entity reasonably
construed to be in competition with AOL or in conflict with
AOL's then generally applicable advertising policies; and
(iii) with the exception of advertising links sold and
implemented pursuant to this Agreement, provide continuous
navigational ability for AOL Users to return to an
agreed-upon point on the AOL Network (for which AOL shall
supply the proper address) from the Affiliated MP Site
(e.g., the point on the AOL Network from which the
Affiliated MP Site is linked), which, at AOL's option, may
be satisfied through the use of a hybrid browser format.
2.2 CONTENT. MP will provide a comprehensive offering of the categories
of MP Products and other Content described in Exhibit D attached
hereto, through the Affiliated MP Site. MP will review, delete, edit,
create, update and otherwise manage all Content available on or
through the Affiliated MP Site in accordance with the terms of this
Agreement or any amendments thereto. MP will ensure that the
Affiliated MP Site does not in any respect promote, advertise, market
or distribute the products, services or content of any Interactive
Service other than AOL. Except as otherwise mutually agreed upon by
the Parties hereto, the Affiliated MP Site shall not contain Content
(including without limitation, third party content) relating to
anything other than the Exclusive Service and the categories of MP
Products listed on Exhibit D attached hereto.
2.3 PRODUCTION WORK. Except as agreed to in writing by the Parties
pursuant to the "Production Work" section of the Standard Online
Commerce Terms & Conditions attached hereto as Exhibit F, MP will be
responsible for all production work associated with the Affiliated MP
Site, including all related costs and expenses.
2.4 HOSTING; COMMUNICATIONS. MP will be responsible for all
communications, hosting and connectivity costs and expenses
associated with the Affiliated MP Site. In addition, MP will provide
all computer, telephone and other equipment or resources necessary
for MP to access the AOL Network. MP and AOL shall mutually agree
upon the most appropriate means by which MP will connect the MP data
center to AOL's designated data center; provided, however, that in
the event the Parties determine that MP shall utilize a dedicated
high speed connection from the MP data center to AOL's designated
data center, then MP shall be responsible for all costs associated
with such high speed connection.
2.5 PRODUCT OFFERING. MP will ensure that to the extent not otherwise
prohibited or restricted by the terms of this Agreement, the
Affiliated MP Site includes all of the MP Products or Content
(including, without limitation, product selection, or any features,
functionality or technology) that are then made available by or on
behalf of MP through any Additional MP Channel; provided, however,
that (i) such inclusion will 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), and (ii)
the specific changes in scope, nature and/or offerings required by
such inclusion will be subject to AOL's review and approval and the
terms of this Agreement.
2.6 PRICING AND TERMS. MP will ensure that: (i) the regular prices (and
any other required consideration) for the MP Products in the
Affiliated MP Site do not exceed the regular prices (and any other
required consideration) for the MP Products or any substantially
similar products offered by or on behalf of MP through any Additional
MP Channel; (ii) the standard terms and conditions on which the MP
Products or any other products are
4
offered in or through the Affiliated MP Site are generally no less
favorable, than the terms and conditions on which the MP Products or
any substantially similar products are offered by or on behalf of MP
in or through any Additional MP Channel; (iii) the prices of the MP
Products or any other products offered in the Affiliated MP Site are
competitive in all material respects with the appropriate prices
(e.g., regional or national prices) of the MP Products or
substantially similar products as such prices are monitored and
published from time to time by Information Resources, Inc. ("IRI"),
or any successor or replacement entity thereto; and (iv) the overall
terms and conditions (including, without limitation, the sale,
delivery and pricing of such MP Products (provided that, with respect
to pricing, the Parties shall rely on the provision of clause (iii)
above)) related to the MP Products or any other products offered in
the Affiliated MP Site are competitive with the overall terms and
conditions (including without limitation, the sale, delivery and
pricing of such products) for the MP Products or substantially
similar products offered on a regular basis by any MP Competitor
through any Interactive Site, provided that such MP Competitors are
not engaged in predatory pricing or anti-competitive behavior.
2.7 SPECIAL OFFERS. Subject to the provisions of Section 2.6 above, on a
regular and consistent basis, MP shall promote preferred offerings of
supermarket products to AOL Members through the Affiliated MP Site
which are reasonably comparable (including, without limitation,
scope, price, frequency and amount) to special or promotional offers
generally made available by or on behalf of MP through any Additional
MP Channel, as well as various other special offers exclusively
available to AOL Members and/or AOL Users (the "Special Offers"). MP
will take reasonable efforts to provide AOL with reasonable prior
notice of Special Offers so that AOL can market the availability of
such Special Offers in the manner AOL deems appropriate in its
editorial discretion, subject to the terms and conditions hereof;
provided that if MP fails to take such efforts, AOL shall be under no
obligation to promote such Special Offers.
2.8 OPERATING STANDARDS. MP will ensure that the Affiliated MP Site and
the delivery of the MP Products comply at all times with the
standards set forth in Exhibit E. To the extent site standards are
not established in Exhibit E with respect to any aspect or portion of
the Affiliated MP Site (or the MP Products or other Content contained
therein), MP will provide such aspect or portion at a level of
accuracy, quality, completeness, and timeliness which meets or
exceeds prevailing standards in the grocery and supermarket industry.
2.9 ADVERTISING SALES. Subject to the terms hereof, MP shall have the
right to sell promotions, advertisements, links, pointers or similar
services or rights through the Affiliated MP Site ("Advertisements").
The specific advertising inventory within the Affiliated MP Site
shall be determined by MP. MP will provide AOL with monthly reports
providing detailed information regarding any advertising sales by MP
and any other information relevant to the computation and sharing of
Advertising Revenues derived from the Affiliated MP Site from and
after such time as MP shall begin payment of any amounts due pursuant
to Section 4.2 hereof. MP and AOL shall share the revenues derived
from the sale of Advertisements in the Affiliated MP Site pursuant to
Section 4.2 hereof. Subject to the terms hereof, all Advertisements
in the Affiliated MP Site shall be subject to AOL's then-applicable
advertising policies and existing exclusivities. With respect to any
Advertisements which link to any third party areas outside of the
Affiliated MP Site, such Advertisements shall be subject to the prior
reasonable approval of AOL. Upon MP's request for approval of a third
party link from the Affiliated MP Site to a third party area outside
the Affiliated MP Site pursuant to this Section 2.9, AOL shall
promptly respond to such request within three (3) business days after
receipt of such request.
3 AOL EXCLUSIVITY OBLIGATIONS.
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3.1 EXCLUSIVE SERVICE. Provided that MP is in compliance with all
material terms of this Agreement, MP will be the exclusive marketer
of Supermarket Shopping Delivery Services which is expressly promoted
or advertised by AOL on the AOL Service and/or XXX.xxx as provided
herein (the "Exclusive Service"). AOL shall promote the Exclusive
Service on the AOL Service during the Initial Term (and any Extension
Period) (the "AOL Service Exclusivity Period") and on XXX.xxx for a
period of two (2) years following the Effective Date (the "XXX.xxx
Exclusivity Period").
3.2 EXCEPTIONS. Notwithstanding anything to the contrary contained
herein, no provision of this Agreement will limit AOL's ability (on
or off the AOL Network) to:
(i) undertake activities or perform duties pursuant to existing
arrangements with third parties (or pursuant to any agreements
to which AOL becomes a party subsequent to the Effective Date as
a result of a change of control, assignment, merger, acquisition
or other similar transaction). If during the Term AOL incurs an
obligation pursuant to this Section 3.2(i) and AOL's performance
of such obligation materially and adversely impacts MP's
exclusivity with respect to the Exclusive Service hereunder, the
Parties shall immediately submit the matter to the Management
Committee as provided in Section 7 hereof. Further, AOL hereby
acknowledges that, to the best of its knowledge, there are no
agreements existing as of the Effective Date requiring AOL to
market an Exclusive Service;
(ii) promote, advertise or distribute the products of any third
party(other than an MP Competitor) which is an aggregator of
products and/or services (e.g. department stores, mass
merchandisers) and is not primarily a provider of Supermarket
Shopping Delivery Services (i.e., it is primarily engaged in
activities other than providing Supermarket Shopping Delivery
Services) (an "Aggregator"); provided that, AOL shall not
promote (a) any supermarket shopping delivery services or
grocery stores of such Aggregator or (b) any specific Consumer
Packaged Good or categories of Consumer Packaged Goods offered
by such Aggregator on the screens of the AOL Service or XXX.xxx
on which MP has an exclusivity as provided herein;
(iii) promote or provide advertisement placements to any third party
which offers only a single product, or a single line or category
of products; provided that, to the extent such line or category
of products are Consumer Packaged Goods, such third party may
only advertise or promote such line or category of products in
accordance with the industry defined categories of Consumer
Packaged Goods as listed on Exhibit D attached hereto (i.e.,
such third party cannot aggregate categories of products to
create larger and more comprehensive categories of products to
be offered or promoted on the screens of the AOL Service or
XXX.xxx on which MP has an exclusivity as provided herein);
(iv) promote or provide advertisement placements to any third party
(other than an Aggregator or an MP Competitor) which third party
offers multiple lines or categories of products which may be a
subset of the categories of MP Products offered by MP; provided
that, (a) such third party cannot market or promote itself on
the AOL Service or XXX.xxx as the provider of a supermarket
shopping delivery service or grocery store, and (b) except with
respect to the Excluded Products, to the extent such lines or
categories of products (1) are Consumer Packaged Goods, (2) are
distributed by MP as an MP Product, and (3) represent at least
fifteen percent (15%) of Transaction Revenues, AOL shall not
provide advertisements to a third party for the purpose of
promoting or advertising such products or categories of
products. The restriction in the preceding proviso shall not in
any way restrict or affect AOL's rights under clauses (ii) and
(iii) of this Section 3.2;
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(v) promote or provide advertisement placements to any third party
in the AOL Service and XXX.xxx Shopping Channels (collectively,
the "Shopping Channels"); provided that, with respect to any MP
Competitor, (a) AOL shall only promote or provide advertisement
placements to such MP Competitor in the food related areas of
the Shopping Channels and (b) such promotions and advertisement
placements shall be less prominent than any promotions or
advertising placements provided to MP in any food related areas
of the Shopping Channels, and
(vi) enter into an arrangement with any third party for the primary
purpose of acquiring AOL Users whereby such third party is
allowed to promote or market products or services to AOL Users
that are acquired as a result of such agreement.
3.3 LIMITATIONS; CARVE-OUTS. With respect to any limitations imposed on
the exceptions provided to AOL in the preceding Section 3.2, or any
provisos thereto or carve-outs therefrom, such limitations, provisos
or carve-outs shall only be applicable to the AOL Service during the
AOL Service Exclusivity Period and to XXX.xxx during the XXX.xxx
Exclusivity Period.
3.4 MP PRODUCT RESTRICTIONS. AOL reserves the right to restrict or limit
the sale, promotion or distribution in the Affiliated MP Site or
anywhere on the AOL Network, of any MP Product (other than with
respect to the MP Products listed on Exhibit D) which AOL, in its
reasonable discretion, does not consider to be a product which is
ordinarily sold by a traditional supermarket or grocery store.
Additionally, if MP sells, promotes or distributes any MP Products
which are identical or similar in nature to any products sold by an
AOL Preferred Retailer (e.g. flowers, books, music, etc.) (the
"Restricted Products"), subject to AOL's prior written approval, MP
may enter into relationships with such AOL Preferred Retailers with
respect to the sale, promotion or distribution of the Restricted
Products; provided that, should MP or an AOL Preferred Retailer
choose not to enter into an arrangement with respect to the sale,
promotion or distribution of the Restricted Products, MP's sale,
promotion or distribution of the Restricted Products shall be subject
to the following: (a) the Restricted Products shall be sold, promoted
or distributed at least two (2) clicks away from any screen on the
AOL Service or XXX.xxx (including a Welcome Mat screen) linking to
the Affiliated MP Site, (b) the offering of the Restricted Products
must be generic and cannot be co-branded with the trademark,
tradename or other identifying xxxx of any third party or packaged
with the co-branded product of any third party, (c) MP shall not
create a boutique or other specialty store exclusively for the sale
of such Restricted Products (individually or in the aggregate) and
(d) MP shall sell a limited number of the Restricted Products in the
same manner that such Restricted Products are sold in traditional
supermarkets, grocery stores or convenience stores (e.g. limited SKU
depth, manner of promotion, etc.). In connection with the foregoing,
MP has submitted to AOL a comprehensive list of products and
categories of products sold or intended to be sold by MP in the
Affiliated MP Site, referred to herein as Exhibit D.
4 PAYMENTS.
4.1 (i) GUARANTEED PAYMENTS. Subject to AOL's compliance with the
material terms and conditions hereof, MP will pay to AOL a
non-refundable guaranteed payment of [*] as follows:
a) [*] upon execution of this Agreement;
b) [*] on or prior to July 15, 1998;
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c) [*] upon the earlier of the next Financing Event or
November 15, 1998;
d) [*] on the one (1) year anniversary date of the Agreement;
and
e) [*] on the two (2) year anniversary date of the Agreement.
(ii) ACCELERATION. Subject to the mutual agreement of the Parties
hereto, MP shall have the right to accelerate the payments
provided for in the preceding clause, and upon such
acceleration, AOL shall adjust the delivery of the Impressions
Commitment accordingly.
4.2 PERFORMANCE PAYMENTS; REVENUE SHARE. During the Term, MP shall pay to
AOL the following amounts with respect to New AOL Purchasers:
(i) an amount equal to [*] of all Advertising Revenues generated by
MP hereunder from and after such time as MP shall have acquired
New AOL Purchasers in excess of or equal to [*] New AOL
Purchasers but less than [*] New AOL Purchasers;
(ii) (a) an amount equal to [*] of all Transaction Revenues generated
by MP hereunder from and after such time as MP shall have
acquired New AOL Purchasers in excess of or equal to [*] New AOL
Purchasers but less than [*] New AOL Purchasers and (b) a bounty
payment equal to [*] for each New AOL Purchaser acquired by MP
in excess of or equal to [*] New AOL Purchasers but less than
[*] New AOL Purchasers; and
(iii) (a) an amount equal to (1) [*] of all Transaction Revenues and
(2) [*] of all Advertising Revenues generated by MP hereunder
from and after such time as MP shall have acquired New AOL
Purchasers in excess of or equal to [*] New AOL Purchasers, and
(b) a bounty payment of [*] for each New AOL Purchaser acquired
by MP in excess of or equal to [*] New AOL Purchasers.
(iv) Notwithstanding the foregoing or anything to the contrary
contained herein, from and after such time as MP shall have
reached the Threshold, the foregoing performance and revenue
share payments shall immediately terminate and in lieu thereof,
MP shall pay to AOL an amount equal to (a)(1) [*] of all
Transaction Revenues and (2) [*] of all Advertising Revenues
generated by MP hereunder, and (b) a bounty payment of [*] for
each New AOL Purchaser acquired by MP after the Threshold has
been met. The amounts required to be paid pursuant to this
Section 4.2 shall be paid to AOL within thirty (30) days
following the end of each quarter.
4.3 ALTERNATIVE REVENUE STREAMS. In the event MP or any of its affiliates
receives or desires to receive, directly or indirectly, any
compensation in connection with the Affiliated MP Site other than
Transaction Revenues or Advertising Revenues (an "Alternative Revenue
Stream"), MP will promptly inform AOL in writing, and the Parties
will negotiate in good faith regarding whether MP will be allowed to
market products producing such Alternative Revenue Stream through the
Affiliated MP Site, and if so, the equitable portion of revenues from
such Alternative Revenue Stream (if applicable) which will be shared
8
with AOL(in no event less than the percentage of Transaction Revenues
to be paid to AOL pursuant to this Section 4). In the event the
Parties cannot in good faith reach agreement regarding such
Alternative Revenue Stream within thirty (30) days of AOL's request
to negotiate, MP shall have the right to market products producing
such Alternative Revenue Stream and the Parties shall submit all
issues related to AOL's revenue share of such Alternative Revenue
Stream to the Management Committee as provided in Section 7 hereof.
Provided that, if MP desires to market Products other than the MP
Products which create an Alternative Revenue Stream, MP shall
negotiate in good faith with AOL regarding such Alternative Revenue
Stream and the equitable portion of such revenues which will be
shared with AOL, prior to marketing such products.
4.4 WIRED PAYMENTS; LATE PAYMENTS. All payments required under this
Section 4 will be paid in immediately available, non-refundable funds
wired to AOL's account. All amounts owed hereunder not paid when due
and payable will bear interest from the date such amounts are due and
payable at the prime rate in effect at such time as published in the
Wall Street Journal.
4.5 AUDITING RIGHTS. MP will 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 will have the right, at its
expense, to direct an independent certified public accounting firm no
more than once per year to conduct a reasonable and necessary
inspection of portions of the books and records of MP which are
relevant to MP's performance pursuant to this Agreement. Any such
audit (a) may be conducted after twenty (20) business days prior
written notice, (b) will be conducted during normal business hours at
the offices of MP or any other reasonable location designated by MP
and (c) will be conducted so as to minimize disruption to MP's
business.
4.6 TAXES. MP will collect and pay and indemnify and hold AOL harmless
from, any sales, use, excise, import or export value added or similar
tax or duty not based on AOL's net income, including any penalties
and interest, as well as any costs associated with the collection or
withholding thereof, including attorneys' fees.
4.7 REPORTS.
4.7.1 Sales Reports. Subject to the provisions of Section 2.9 hereof,
MP will provide AOL with a monthly report (except with respect
to clause (ii) below which report shall be quarterly) in a
mutually agreed format, detailing the following activity (and
any other information mutually agreed upon by the Parties or
reasonably required for measuring revenue activity by MP through
the Affiliated MP Site): summary sales information by day (date,
number of MP Products, number of orders, total Transaction
Revenues); and (ii) detailed sales information (order date/time
stamp (if technically feasible), purchaser name and screenname),
(the information in clauses (i) and (ii) are collectively
referred to herein as "Sales Reports"). AOL will be entitled to
use the Sales Reports in its business operations, subject to the
terms of this Agreement. Additionally, AOL will not disclose
individual AOL Purchaser Information to any third party and will
restrict its use of Sales Reports to (a) internal programming
and advertising rotation purposes and (b) informational
disclosures as part of broader aggregate data regarding AOL
Members. All Sales Reports and the information contained therein
will be considered Confidential Information and subject to the
confidentiality provisions hereof. More generally, each payment
to be made by MP pursuant to this Section 4 will be accompanied
by a report containing information which supports
9
the payment, including information identifying (i) gross
Transaction Revenues and all items deducted or excluded from
gross Transaction Revenues to produce Transaction Revenues,
including, without limitation, chargebacks and credits for
returned or canceled goods or services (and, where possible, an
explanation of the type of reason therefor, e.g., bad credit
card information, poor customer service, etc.) and (ii) any
applicable Advertising Revenues. AOL shall provide MP 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 MP.
4.7.2 Fraudulent Transactions. To the extent permitted by applicable
laws, MP will provide AOL with a report of any fraudulent order,
including the date, screenname or email address and amount
associated with such order, promptly following MP obtaining
knowledge that the order is, in fact, fraudulent; provided that,
in the absence of bad faith, MP's failure to provide the
foregoing shall not result in a breach by MP of this Agreement.
5 WARRANTS [INTENTIONALLY OMITTED]
6 TERM; RENEWAL; TERMINATION.
6.1 Term. Unless earlier terminated as set forth herein, the initial
term of this Agreement will be thirty seven (37) months from the
Effective Date (the "Initial Term").
6.2 Renewal. Upon conclusion of the Initial Term, AOL shall have the
right to renew the Agreement for three (3) successive one-year
renewal terms (each a "Renewal Term" and together with the
Initial Term, the "Term") by providing MP with notice of AOL's
intention to renew the Agreement for a subsequent Renewal Term
no later than sixty (60) days prior to the commencement of such
Renewal Term, provided that, (i) [*] and (ii) during any such
Renewal Term, (a) MP will not be required to pay any guaranteed,
fixed payment required under Section 4.1 or perform the
cross-promotional obligations specified in Section 1.5; and (b)
AOL will not be required to undertake any fixed exclusivity or
promotional/placement obligations; provided that, for so long as
AOL may elect to maintain the exclusivity commitments contained
herein during a Renewal Term, MP will continue to perform its
cross-promotional obligations. Upon expiration of AOL's rights
under this Section 6.2, the Parties shall negotiate, in good
faith, entering into an agreement whereby AOL shall have the
right to promote one or more "pointers" or links from the AOL
Network to the Affiliated MP Site or, at MP's option, to an MP
Interactive Site selling products substantially similar to the
MP Products and the Parties shall enter into payment
arrangements on terms and conditions that are mutually
satisfactory to the Parties.
6.3 Termination for Breach. Except as expressly provided elsewhere
in this Agreement, either Party may terminate this Agreement (or
any notice to renew this Agreement) at any time in the event of
a material breach of the Agreement by the other Party which
remains uncured after thirty (30) days written notice thereof to
the other Party (or such shorter period as may be specified
elsewhere in this Agreement); provided that, AOL will not be
required to provide notice to MP in connection with MP's failure
to make any payment to AOL required hereunder. 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
10
breach remains uncured at the expiration of such shorter period
after written notice thereof to the other Party.
6.4 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 stayed or dismissed within ninety (90) calendar
days or (iv) makes an assignment for the benefit of creditors.
6.5 Termination on Change of Control. In the event of a Change of
Control of MP resulting in control of MP by (i) Cendant
Corporation prior to or simultaneously with an IPO of MP or (ii)
an Interactive Service other than AOL, AOL may terminate this
Agreement by providing to MP thirty (30) days prior written
notice of such intent to terminate.
6.6 Effect of Termination. Upon termination or expiration hereof, MP
shall have no obligation with respect to the payments required
pursuant to Section 4.1 or 4.2 other than those obligations
required of MP during the period prior to such termination or
expiration.
7 MANAGEMENT COMMITTEE/ARBITRATION. If the Parties are unable to resolve any
dispute, controversy or claim arising under this Agreement (excluding any
disputes relating to intellectual property rights or confidentiality)
(each a "Dispute"), such Dispute shall be submitted to the Management
Committee for resolution. If the Management Committee is unable to resolve
the Dispute within ten (10) business days after submission to them, the
Dispute shall be solely and finally settled by arbitration in Washington,
D.C. under the auspices of the American Arbitration Association; provided
that the Federal Rules of Evidence shall apply in toto to any such Dispute
and, subject to the arbitrators' discretion to limit the time for and
scope of discovery, the Federal Rules of Civil Procedure shall apply
with respect to discovery; and provided further that, consistent with the
parties' desire to avoid delays and unnecessary expense, any Dispute
arising from any provision of the Agreement which expressly or implicitly
provides for the parties to reach mutual agreement as to certain terms
therein shall not be submitted to arbitration but shall be resolved in
good faith by the Management Committee. The arbitrator may enter a default
decision against any Party who fails to participate in the arbitration
proceedings. For the purposes hereof, the "Management Committee" shall
mean a committee made up of two (2) senior executives from each of the
Parties for the purpose of resolving Disputes under this Section and
generally overseeing the relationship between the Parties contemplated by
this Agreement. Notwithstanding the foregoing, during the resolution of
any Dispute, the Parties hereto shall continue to perform all obligations
required hereunder, unless such Dispute goes to the fundamental terms and
benefits to be derived hereunder by a Party.
8 [*]
9 STANDARD TERMS. The Standard Online Commerce Terms & Conditions set forth
in 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.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. NETGROCER INC.
11
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx Nissan
_____________________ _____________________
Xxxxx X. Xxxxxxx Xxxxxx Nissan
Senior Vice President, President and CEO
AOL Networks
12
EXHIBIT A
AOL SERVICE PROMOTIONS - YEAR 1
----------------------------------------------------------- ---------------------------------------------------------
BANNER ADVERTISEMENT PLACEMENTS ESTIMATED YEAR 1 IMPRESSIONS1
----------------------------------------------------------- ---------------------------------------------------------
----------------------------------------------------------- ---------------------------------------------------------
DEMOGRAPHIC TARGETING2 (Run of AOL Service)
Based on up to 5 variables, (e.g., households with women, [*]
with seniors, with children, etc.)
----------------------------------------------------------- ---------------------------------------------------------
----------------------------------------------------------- ---------------------------------------------------------
TARGETED AREAS
o Ages & Stages area-Lifestyles Channel
o Home and Newsstand areas - Interests Channel [*]
o Families - Assorted Screens
o Lifestyles - Asssorted Screens
o Member Services - Assorted Screens
o Research & Learn area- Health Channel
o Senior's Health
o Women's Health Organizations and General
o Information
o Electra: Mind & Body - Health and Medicine
o Electra: Mind & Body - Nutrition
o Electra: Careers - Assorted Screens
----------------------------------------------------------- ---------------------------------------------------------
----------------------------------------------------------- ---------------------------------------------------------
RUN OF CHANNEL:
o Electra
o Interests Channel
o Travel Channel [*]
o Personal Finance Channel
o Influence Channel
----------------------------------------------------------- ---------------------------------------------------------
----------------------------------------------------------- ---------------------------------------------------------
AOL FIND:
o AOL Find Central [*]
o Run-of-AOL-Find
----------------------------------------------------------- ---------------------------------------------------------
----------------------------------------------------------- ---------------------------------------------------------
CONTINUOUS & SPECIAL PROMOTIONS (see below) [*]
----------------------------------------------------------- ---------------------------------------------------------
TOTAL: [*]
----------------------------------------------------------- ---------------------------------------------------------
-------------------
1 In the event the Parties mutually agree to run "pop-up" advertisements, the
total Impressions Commitment will be adjusted downward accordingly, based on
AOL's rates for such pop-ups. Additionally, the promotions provided hereunder
shall be linked to the Affiliated MP Site (or any intermediate screens on the
AOL Service as determined by the Parties).
2 Promotions will be run in minimum insertion orders of one million [*]
Impressions. AOL will work with MP to design insertion orders and AOL will
ensure that the Impressions delivered during the Term do not exceed more than
[*] of the inventory on email and chat, subject to MP's reasonable and usual
choice of demographic variables (in relation to the demographic makeup of the
overall AOL audience) and banner availability. To the extent that more than [*]
of the aggregate Impressions delivered during any calendar quarter are derived
from inventory on email and chat, [*]
13
CONTINUOUS PROMOTIONS
Interests Channel:
o Continuous Promotion on the main screen of the Food area
o Continuous Promotion in Recipes department of Food area
o List box on front screen of Food area
o List box on front screen of Pets area
Families Channel:
o List box on front screen of Timesavers area
o List box on front screen of Parenting area
o List box on front screen of Babies area
o List box on front screen of Homebase area
Health Channel:
o List box on front screen of Dieting & Weight Loss area (so long as MP links
directly to a screen on the Affiliated MP Site which promotes Products
directly related to such area)
o List box on front screen of Eating Well area (so long as MP links directly
to a screen on the Affiliated MP Site which promotes Products directly
related to such area)
Shopping Channel:
o Continuous Promotion in Gourmet Gifts area (or any food or Consumer Packaged
Goods related -successor area thereto) (including participation in
promotional rotations along with other merchants in such area, provided
that, no other merchants (other than an MP Competitor, which shall be less
prominent) shall be more prominent than MP in such area)
o List box on front screen of Home, Kitchen and Garden area
o List box on front screen of Home Office area (so long as MP (a) links
directly to a screen on the Affiliated MP Site which promotes Products
directly related to such area and (b) includes a reference to office
products (e.g. NetGrocer Office Products) in the description of the List
Box)
o Continuous Promotion in proposed "Store Listing" area (currently contained
within the "Search" subchannel of the AOL Shopping Channel)
SPECIAL PROMOTIONS
AOL will provided MP with the opportunity to participate in AOL's special
promotional programs currently known as "Deal of the Day," "Weekly Goods
Newsletter" and "Real Deals Newsletter"; provided that (a) any MP Product
offered as a Deal of the Day must meet the then generally applicable terms for
inclusion (e.g., currently, products must be offered at a 25% discount) and (b)
participation in each program is subject to AOL's programming team's editorial
discretion.
KEYWORDS
The Affiliated MP Site will be accessible from the AOL Service through the use
of the keyword "NetGrocer" (or such other keyword as AOL may assign to MP in
the case of a name change by MP); provided, however, that such keyword (i)
shall at all times be subject to availability and (ii) shall be a "non-generic"
trademark of MP.
14
XXX.XXX PROMOTIONS
The XXX.xxx Impressions will be distributed in various areas of XXX.xxx and
through other AOL web related products including, but not limited to, the areas
listed below. AOL will provide approximately [*] of the XXX.xxx Impressions
during the first year of this Agreement.
- XXX.XXX - Home Page
- AOL NETFIND ON XXX.XXX -Home Page and (Industry Keyword Packages
- CONTEXTUALLY RELEVANT WEB CENTERS - (Families, Home and Garden, Recipes
Department) - Integration into areas when available
- SHOPPING - Anchor in (i)
Gourmet Gifts and Grocery Department and (ii) Auctions & Bargains Department
- HOMETOWN AOL - Rotational Banner Ads
- MY NEWS - Rotational Banner Ads
- GENERAL ROTATION BANNER ADVERTISEMENTS - COMPARABLE PROMOTIONS - Other
comparable promotions on the AOL Network, as mutually agreed upon by the
Parties.
WEB PRODUCTS
- AOL INSTANT MESSENGER - Rotational Banner Ads
The Impressions generated through general rotational banner advertisements and
AOL Instant Messenger shall represent no more than [*] of the XXX.xxx
Impressions. To the extent that such Impressions exceed [*] of the XXX.xxx
Impressions, [*] Notwithstanding anything to the contrary contained herein,
during the XXX.xxx Exclusivity Period, the exclusivity provisions of Section 3
shall apply to AOL NetFind solely to the extent that AOL NetFind is accessed
and used through XXX.xxx.
15
EXHIBIT B
DEFINITIONS
The following definitions will apply to this Agreement:
ADDITIONAL MP CHANNEL. Any other distribution channel (e.g., an Interactive
Service other than AOL) through which MP makes available an offering comparable
in nature to the Affiliated MP Site.
ADVERTISING REVENUES. The combination of AOL Advertising Revenues and Internet
Advertising Revenues:
AOL ADVERTISING REVENUES. (a) Aggregate amounts collected plus the
fair market value of any other compensation received (such as barter
advertising) by MP, or its agents, as the case may be, arising from
the license or sale of advertisements, promotions, links or
sponsorships ("Advertisements") that appear within any pages of the
Affiliated MP Site or on any screens or forms preceding, framing or
otherwise directly associated with the Affiliated MP Site, less
applicable Advertising Sales Commissions and (b) any marketing fees,
or any similar fees collected by MP from vendors for direct marketing
efforts directed at any AOL Member or AOL User; provided that, with
respect to clause (a) above, the standard display by MP of the MP
Products in the Affiliated MP Site shall not be considered an
Advertisement. Additionally, if at any time after the Effective Date
MP shall charge a fee of any kind to the manufacturers or wholesalers
of the MP Products for the prominent display or preferred placement of
such MP Products in the Affiliated MP Site then such fees shall be
considered AOL Advertising Revenues.
INTERNET ADVERTISING REVENUES. For each Advertisement on a page of the
Affiliated MP Site or any MP Interactive Site which is not exclusively
available to AOL Users, the product of: (a) the amount collected plus
the fair market value of any other compensation received (such as
barter advertising) by MP or its agents arising from the license or
sale of such Advertisement attributable to a given period of time,
less applicable Advertising Sales Commissions and (b) the quotient of
(i) Impressions on the page containing such Advertisement by AOL Users
for such period of time divided by (ii) total Impressions on the page
containing such Advertisement by all users for such period of time
(the "Internet Advertising Quotient") (or such other percentage or
formula as is mutually agreed upon in writing by the Parties). With
respect to any MP Interactive Site, MP shall be responsible for
Internet Advertising Revenues only to the extent that such revenues
are derived from AOL Members who access such MP Interactive Site
directly from the AOL Service or XXX.xxx. MP will be responsible for
calculating the Internet Advertising Quotient related to Internet
Advertising Revenues. For any period during which MP fails to
calculate the Internet Advertising Quotient (other than as the sole
result of AOL's failure to provide necessary Impressions information),
[*] If MP fails to perform such calculation, then such quotient will
be deemed to be one hundred percent (100%).
ADVERTISING SALES COMMISSION. (i) Actual amounts paid as commission to third
party agencies in connection with the sale of the Advertisement or (ii) [*], in
the event the Party has sold the Advertisement directly and will not be
deducting any third party agency commissions.
AFFILIATED MP SITE. The customized web site promoted and distributed by AOL
hereunder through which MP can market and complete transactions regarding the
MP Products.
AOL INTERACTIVE SITE. Any Interactive Site which is managed, maintained, owned
or controlled by AOL or its agents.
16
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 Network, including any sub-accounts
using the AOL Network under an authorized master account.
AOL NETWORK. (i) The AOL Service, (ii) XXX.xxx and (iii) 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).
AOL PREFERRED RETAILER. Any third party with which AOL enters into an exclusive
arrangement with respect to the sale, promotion or distribution of such third
party's products or services, provided that, other than with respect to the
Excluded Products, such products or services are not Consumer Packaged Goods.
AOL PURCHASER. (i) Any person or entity who enters the Affiliated MP Site from
the AOL Service or XXX.xxx 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 the Affiliated MP Site which
includes a domain other than an "XXX.xxx" domain); and (ii) any other person or
entity who, when purchasing a product, good or service through an MP
Interactive Site, provides an XXX.xxx domain name as part of such person or
entity's e-mail address; provided that (a) any person or entity who enters an
MP Interactive Site from any area of the Internet which is controlled by a
third party, and to which third party MP has a payment obligation with respect
to such person or entity, [*] and (b) any person or entity who has previously
satisfied the definition of AOL Purchaser will remain an AOL Purchaser, and any
subsequent purchases by such person or entity will also give rise to
Transaction Revenues hereunder (and will not be conditioned on the person or
entity's satisfaction of clauses (i) or (ii) above). [*]
AOL SERVICE. The narrow-band U.S. version of the America Online(R) brand
service, specifically excluding (a) XXX.xxx or any other AOL Interactive Site,
(b) the international versions of the AOL Service (e.g., AOL Japan), (c)
"Driveway," "AOL NetFind(TM)," "AOL Instant Messenger(TM)" or any similar
product or service offered by or through the U.S. version of the America
Online(R) brand service, (d) any programming or content area offered by or
through the U.S. version of the America Online(R) brand service over which AOL
does not exercise complete or substantially complete operational control (e.g.,
Content areas owned, maintained or controlled by AOL Studios or other AOL
affiliates, "Digital City(TM)," "WorldPlay(TM)," "Entertainment Asylum(TM),"
the "Hub(TM)," or any similar "sub-service," third-party Content areas, and any
Interactive Site containing "xxxxxxx.xxx.xxx" as part of its URL), (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 America
Online(R) brand service, (f) any co-branded or private label branded version of
the U.S. version of the America Online(R) brand service, (g) any version of the
U.S. version of the America Online(R) brand service distributed 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 AOL or its affiliates may acquire subsequent to the Effective Date.
AOL USER. Any user of the AOL Service or XXX.xxx that links to the Affiliated
MP Site or any MP Interactive Site through the AOL Service or XXX.xxx.
17
XXX.XXX. AOL's primary Internet-based Interactive Site marketed under the
"XXX.XXX" brand, specifically excluding (a) the AOL Service, (b) any
international versions of XXX.xxx, (c) "Driveway," "AOL NetFind(TM)," "AOL
Instant Messenger" 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 or any other AOL Interactive Site over which
AOL does not exercise complete or substantially complete operational control
(e.g., Content areas owned, maintained or controlled by AOL Studios or other
AOL affiliates, "Digital City(TM)," "WorldPlay(TM)," "Entertainment
Asylum(TM)," the "Hub(TM)," or any similar "sub-service," third-party Content
areas, and any Interactive Site containing "xxxxxxx.xxx.xxx" as part of its
URL), (e) 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, (f) any co-branded or private label branded version such
site, (g) any version of such site distributed 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 AOL
or its affiliates may acquire subsequent to the Effective Date.
CHANGE OF CONTROL. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets
of a party; or (b) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1933, as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
CONSUMER PACKAGED GOODS. Packaged goods that are manufactured for mass market
consumption by companies such as Procter & Xxxxxx, Xxxxx Food, Coca-Cola, etc.
which are distributed primarily through traditional supermarkets, grocery
stores or convenience stores as determined according to generally available
data published by IRI (e.g. the categories of Products listed on Exhibit D as
Consumer Packaged Goods). Consumer Packaged Goods shall not include the
Excluded Products or any items manufactured for niche markets (e.g. ethnic
foods, health foods, etc.), produce or specialty products (e.g. Omaha Steaks).
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 MP customers, technical processes and formulas,
source codes, product designs, sales, cost and other unpublished financial
information, product and business plans, projections, and marketing data.
"Confidential Information" will not include information (a) already lawfully
known to or independently developed by the receiving Party, (b) generally known
to the public, or (c) lawfully obtained from any third party.
CONTENT. Information, services, materials, features, products, advertisements,
promotions, links, pointers and software, including any modifications,
upgrades, updates, enhancements and related documentation.
CONTINUOUS PROMOTION. Any placement, link, advertisement or other promotional
space designated by AOL which is provided on a continuous basis (e.g., AOL's
"Tenant" buttons).
EXCLUDED PRODUCTS. Any products sold directly by the manufacturer of such
products, specialty or gourmet products, drug or drug related products,
cosmetic or cosmetic related products, fragrance or fragrance related products,
specialty baby or baby-related products, auto or auto-related products,
confectionary or confectionary-related products, film or film-related
products, specialty hair or hair related products, water treatment products,
newspapers and magazines, toys, vitamins or vitamins related products, office
supplies, pet supplies, software or software related products, videos or video
related
18
products, apparel products, beauty or beauty related products, liquor or liquor
related products, products sold by entities with which AOL has an exclusivity
arrangement, and any other products added to the foregoing list by AOL from
time to time as mutually agreed upon by the Parties hereto.
FINANCING EVENT. At any time after the Effective Date, the occurrence of either
(a) the receipt, in a single transaction or series of related transactions, of
equity funding of at least Fifteen Million Dollars (US $15,000,000) by MP from
a private investor or group of investors or (b) an IPO of MP; provided,
however, that if MP receives funding pursuant to clause (a) of this definition
in an amount less than Fifteen Million Dollars (US $15,000,000), MP may not use
such proceeds to make any payments in connection with any marketing or
distribution arrangement with any third party entered into after the Effective
Date which exceed One Hundred Fifty Thousand Dollars (US $150,000)
individually, and Five Hundred Thousand Dollars ($500,000) in the aggregate.
Notwithstanding the foregoing, if MP makes the payments required pursuant to
Section 4.1(c) hereof, then the foregoing proviso shall be null, void and of no
further effect.
GROSS MARGINS. Aggregate Transaction Revenues less, the price paid to suppliers
for the products and/or services sold, credit card charges, credit card
clearing house fees, and warehousing costs.
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.
INTERACTIVE SERVICE. Any entity that offers online or Internet connectivity (or
any successor form of connectivity), aggregates and/or distributes a broad
selection of third-party Content, or provides interactive navigational services
(including, without limitation, any online service providers, Internet service
providers, WebTV, @Home or other broadband providers, search or directory
providers, "push" product providers such as the Pointcast Network or providers
of interactive navigational environments such as Microsoft's proposed "Active
Desktop", consumer products and services aggregators such as Cendant
Corporation).
INTERACTIVE SITE. Any interactive site or area, including, by way of example
and without limitation, (i) an MP site on the World Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product such as
the Pointcast Network or interactive environment such as Microsoft's proposed
"Active Desktop."
IPO. The receipt of equity funding by MP as a result of the initial public
offering of securities of MP pursuant to an effective registration statement
under the Securities Act of 1933, as amended.
LICENSED CONTENT. All Content offered through the Affiliated MP Site pursuant
to this Agreement or otherwise provided to AOL by MP for related purposes
(e.g., Promotions, AOL "slideshows" , etc.), including in each case, any
modifications, upgrades, updates, enhancements, and related documentation.
MP INTERACTIVE SITE. Any Interactive Site (other than the Affiliated MP Site)
which is managed, maintained, owned or controlled by MP or its agents.
MP COMPETITORS. OnCart, Peapod, Shopper Express, Home Runs, Home Grocer,
Streamline, ShopLink, PinkDot; provided that, from time to time, (i) MP upon
written notice to AOL, shall have the right to add new entities to the
foregoing list subject to AOL's reasonable approval, and (ii) AOL shall have
the right to remove any entity from the foregoing list, subject to MP's
reasonable approval.
MP PRODUCT. Any product, good or service which MP (or others acting on its
behalf or as distributors) offers, sells, provides, distributes or licenses to
AOL Users directly or indirectly through (i) the Affiliated MP Site (including
through any Interactive Site linked thereto) and which are listed on Exhibit D
to the Agreement, (ii) any other online means related to an AOL User's visit to
the MP Affiliated Site (e.g., e-mail offers following user registration), or
(iii) an "offline" means (e.g., toll-free number) for receiving orders
19
related to specific offers within the Affiliated MP Site 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).
NEW AOL PURCHASER. Any AOL Purchaser who during the Term purchases MP Products
on at least [*] separate occasions.
SUPERMARKET SHOPPING DELIVERY SERVICES. The online promotion, fulfillment of
orders and/or retail sale and delivery of a line, or lines of products
available in traditional supermarket or grocery stores (e.g. perishable foods,
non-perishable foods, canned items, toiletries, cosmetics, general
merchandising (e.g. pencils, scotch tape, etc.), etc.).
THRESHOLD. Gross Margins generated hereunder by MP equal to [*]
TRANSACTION REVENUES. Aggregate amounts paid by AOL Purchasers in connection
with the sale, licensing, distribution or provision of any MP Products, and
excluding, in each case, handling and shipping charges (provided that if these
charges represent a source of profit for MP, such charges will be included in
the definition of Transaction Revenues), refunds, allowances, offsets,
discounts credits or chargebacks for returned or canceled goods or services and
amounts collected for sales or use taxes or duties.
20
EXHIBIT C
MP CROSS-PROMOTION
Online
To the extent that MP provides a promotional banner, button, link or other
promotional presence (a "Promotional Presence") to any other Interactive
Service in an MP Interactive Site, MP shall provide a Promotional Presence to
AOL in such MP Interactive Site linking to such areas of the AOL Network as
determined by AOL, and to the extent that MP provides promotional information
about the products of any other Interactive Service, MP shall provide to AOL a
prominent "Try AOL" feature 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 AOL Service or software for any
other AOL products or services (e.g., AOL's Instant Messenger service) on terms
and conditions (including, without limitation, scope, purpose, amount,
prominence or regularity) that are no less favorable than the terms and
conditions provided to such other Interactive Service.*
Offline
In MP's television, radio and print advertisements and in any publications,
programs, features or other forms of media over which MP exercises at least
sufficient editorial control, MP will include:
o Specific references or mentions (verbally where possible) of the Affiliated
MP Site's availability through America Online(R) at least as prominent as,
any reference to any MP interactive site; and
o For instance, listing of the "URL(s)" the MP interactive site will be
accompanied by the AOL "keyword" for the Affiliated MP Site.
Member Acquisition Programs
The Parties shall negotiate, in good faith, various AOL member acquisition
programs, including without limitation, the bundling of AOL software with
various products shipped by MP to existing MP customers who are not AOL
Members.*
------------
* AOL will pay MP a one-time standard bounty for each person who registers for
the AOL Network using MP's special identifier for this promotion and
subsequently pays AOL monthly usage fees across at least three billing cycles
for the use of the AOL Network. Note that if this promotion is delivered
through Microsoft's Active Desktop or any other "push" product (an "Operating
System"), such feature will link users directly to AOL software within the
Operating System or direct users without Internet access to an AOL application
setup program within the Operating System (all subject to any standard policies
of the Operating System).
21
EXHIBIT D
DESCRIPTION OF MP PRODUCTS AND OTHER CONTENT
CONSUMER PACKAGED GOODS
ADULT INCONTINENCE
AIR FRESHENERS
ALL OTHR BREAKFST FOOD
ANTACIDS
ASEPTIC JUICES
BABY FOOD
BABY FRMLA/ELECTRLYTS
BAKED BEANS
BAKED GOODS - RFG
BAKERY SNACKS
BAKING CUPS/PAPER
BAKING MIXES
BAKING NEEDS
BAKING NUTS
BATH PRODUCTS
BATTERIES
BLEACH
BOTTLED JUICES - SS
BOTTLED WATER
BREADCRUMBS/BATTERS
BREAKFAST MEATS
BREATH FRSHNR XXXX/DR
BUTTER
CANDLES
CANNED HAM
CANNED JUICES - SS
CANNED/BOTTLED FRUIT
CARAMEL/TAFFY APPLES
CARBONATED BEVERAGES
CAT FOOD
CAT LITTER
CHARCOAL
CHEESE
CHEESECAKES
CHOC CANDY (NON-SEAS)
CLD/ALLGY/SNS TBLCGH
CLEANG TOOLS/MPS/BRMS
COCKTAIL MIXES
COCOA MIXES
COFFEE
COFFEE XXXXXXX - SS
COFFEE FILTERS
COLD CEREAL
COLD/ALLRGY/SINUS LIQ
CONTRACEPTIVES
COOKIES
COTTAGE CHEESE
COTTON BALLS
CRACKERS
CREAMS/CREAMERS
CROUTONS
CUPS & PLATES
DENTURE PRODUCTS
DEODORANT
DESSERT TOPPINGS
DESSERTS - RFG
DIAPERS
DINNER SAUSAGE
DINNERS
DIP - SS
DISH DETERGENT
DOG FOOD
DOUGH/BISCUIT DGH-RFG
DRIED FRUIT
DRINK MIXES
DRY BEANS/VEGETABLES
DRY FRUIT SNACKS
EGG SUBSTITUTES
ENGLISH MUFFINS
ENTREE/SIDE DISHES
EVAPRATED/CNDNSED MLK
EXT ANALGESIC RUBS
EYE/CONTCT LNS CRE PR
FABRIC SOFTENER LIQ
FABRIC SOFTENR SHEETS
FACIAL TISSUE
FEMININE NEEDS
FIRELOGS/FIRESTARTERS
FLOOR CLEANERS
FLOUR/MEAL
FOIL PANS
FOILS & WRAPS
FOOD & TRASH BAGS
FOOT CARE PRODUCTS
FRANKFURTERS
FRESH BREAD & ROLLS
FRESH EGGS
FROSTING
FURNITURE POLISH
FZ APPETZERS/SNAC RLS
FZ BABY FOOD
FZ BAKED GOODS
FZ BREAKFAST FOOD
FZ COFFEE XXXXXXX
FZ COOKIES
FZ CORN ON THE COB
FZ DESSERTS/TOPPING
FZ DINNERS/ENTREES
FZ DOUGH
FZ FRUIT
FZ MEAT
FZ NOVELTIES
FZ PASTA
FZ PET FOODS
FZ PIES
FZ PIZZA
FZ PLAIN VEGETABLES
FZ POT PIES
FZ POTATOES/ONIONS
FZ POULTRY
FZ PREPARED VEGETABLE
FZ SEAFOOD
FZ SIDE DISHES
GELATIN/PUDDING MIXES
GRAVY/SAUCE MIXES
GUM
HAIR ACCESSORIES
HAIR COLORING
HAIR CONDITIONER
HAIR SPRAY/SPRITZ
HAIR STYLNG GL/MOUSSE
HAND & BODY LOTION
HOME HEALTH DIAGNOSTICS
HOME PERM/RELAXR KITS
HOT CEREAL
HOUSEHLD CLEANR CLTHS
HOUSEHOLD CLEANER
HOUSEHOLD LUBRICANTS
ICE CREAM CONES/MIXES
ICE CREAM/SHERBET
INSTANT POTATOES
INTERNAL ANALGESICS
ISOTONICS
JELLIES/JAMS/HONEY
JUICE/BEVERAGE - RFG
JUICE/DRNK CONCEN-RFG
JUICE/DRNK CONCEN-SS
JUICES - FROZEN
LARD
LAUNDRY CARE
LAUNDRY DETERGENT
LAXATIVES
LIGHT BULBS
LUNCHEON MEATS
LUNCHES - RFG
MARGRNE/SPRD/BUTTR BL
MARSHMALLOWS
MAYONNAISE
MEAT
MEAT PIES
MEXICAN SAUCE
MILK
MISC HEALTH REMEDIES
MISC HLTH REMDY TABLT
MISC. SNACKS
MLK FLAVRNG/DRNK MXES
MOIST TOWELETTES
MOUTHWASH
MUSTARD & KETCHUP
NON-CHOC CAND NON-SEA
NON-FRUIT DRINKS - SS
ORIENTAL FOOD
OTHER FROZEN FOODS
OTHER RFG PRODUCTS
PANCAKE MIXES
PANTYHOSE/NYLONS
PAPER NAPKINS
PAPER TOWELS
PASTA
PASTA - RFG
PASTRY/DOUGHNUTS
PEANUT BUTTER
PEST CONTROL
PICKLES/RELISH - RFG
PICKLES/RELISH/OLIVES
PIES & CAKES
PIZZA - RFG
22
PIZZA PRODUCTS
PLASTIC BOTTLES
POPCORN/POPCORN OIL
POWDERED MILK
PRODUCE RINSE
RAZORS
RFG DIPS
RFG TORTLA/EGGRL/WNTN
RICE
RICE/POPCORN CAKES
RUG/UPHOLSTERY CLEANR
SALAD DRESSING - RFG
SALAD DRESSINGS - SS
SALAD TOPPINGS
SALTY SNACKS
SANITARY NPKINS/TMPNS
SAUCE SEAFOOD - RFG
SEAFOOD -SS
SEAS/ASSORTED CANDY
SHAMPOO
SHAVG LTION/MENS FRGR
SHORTENING & OIL
SKIN CARE
SLEEPING REMEDIES
SNAC BARS/GRANOLA BRS
SNACK NUTS/SEEDS
SOAP
SOAP DISHES
SOUP
SOUR CREAM
SPAGHETTI/ITALIAN SAU
SPICES/SEASONINGS
SPONGES
SPREADS - RFG
STUFFING MIXES
SUGAR
SUGAR SUBSTITUTES
SUNTAN PRODUCTS
SYRUP/MOLASSES
TEA - BAGS/LOOSE
TEA - READY-TO-DRINK
TEA - INSTANT TEA MIXES
TOILET TISSUE
TOMATO PRODUCTS
TOOTHBRSH/DNTAL ACCES
TOOTHBRUSH HOLDERS
TOOTHPASTE
VEGETABLES
VINEGAR
VITAMINS
WGT CON/NTRTN LIQ/PWD
WGT CTRL CANDY/TABLTS
YOGURT
NON-CONSUMER PACKAGED GOODS
ALL OTHER DELI
ANTI-SMOKING PRODUCTS
APPAREL
ARTS & CRAFTS
AUTMBIL FLUIDS/ANTFRZ
AUTMBIL WAXES/PLISHES
BABY ACCESSORIES
BABY NEEDS
BEER & ALE
BLNK AUDIO/VIDEO CASS
BOOKS
CIGARETTES
COSMETIC STORAGE
COSMETICS - FACIAL
COSMETICS - NAIL
COUGH SYRUP
DISPOSABLE CAMERAS
FILM
FIRST AID ACCESSORIES
FIRST AID TREATMENT
FLASHBULBS
FLORAL
FRAGRANCES
HAIR GROWTH PRODUCTS
LIQUOR
MEXICAN FOODS
MOTOR OIL
MUSIC CDS
NASAL PRODUCTS
NEWSPAPERS AND MAGAZINES
MEDICINES
OFFICE / STATIONERY
PET SUPPLIES
POOL/SPA CHEMICALS
SHOE PLISH&ACCESSRIES
STAMPS
TAPE
TIGHTS/SOCKS
TOBACCO PRODUCTS
TOYS
VIDEO TAPE
VIDEO TAPE - RECORDED
WATR FILTRTION DVICES
WATR SFTNRS/TREATMNT
WINE
WINE COOLERS
23
EXHIBIT E
OPERATING STANDARDS
1. General. The Affiliated MP Site (including the MP Products and other Content
contained therein) will be one of the leading online grocery stores in the
online grocery delivery industry, as determined by each of the following
methods: (a) based on a cross-section of third-party reviewers who are
recognized authorities in such industry and (b) with respect to all material
quality averages or standards in such industry, including each of the
following: (i) pricing of MP Products, (ii) scope and selection of MP
Products (e.g., national vs. private label brands), (iii) quality of MP
Products, (iv) customer service and fulfillment associated with the
marketing and sale of MP Products (e.g. quality and speed of delivery
service) and (v) ease of use. In addition, the Affiliated MP Site will, with
respect to clauses (iii), (iv) and (v) above, be generally competitive with
that which is offered by any MP Competitor generally..
2. Hosting; Capacity. MP will provide all computer servers, routers, switches
and associated hardware in an amount reasonably necessary to meet
anticipated traffic demands, adequate power supply (including generator
back-up) and HVAC, adequate insurance, adequate service contracts and all
necessary equipment racks, floor space, network cabling and power
distribution to support the Affiliated MP Site. In the event MP fails to
satisfy this requirement AOL will have the right (in addition to any other
remedies available to AOL hereunder) to regulate the Promotions to the
extent necessary to minimize user delays until such time as MP corrects its
infrastructure deficiencies.
3. Speed; Accessibility. MP will use all commercially reasonable best efforts
to ensure that the performance and availability of the Affiliated MP Site
(a) is monitored on a continuous, 24/7 basis and (b) remains competitive in
all material respects with the performance and availability of other similar
sites based on similar form technology. MP will ensure that: (a) the
functionality and features within the Affiliated MP Site are optimized for
the client software then in use by AOL Users; and (b) the Affiliated MP Site
is designed and populated in a manner that minimizes delays when AOL Users
attempt to access such site.
4. User Interface. MP will use all commercially reasonable efforts to maintain
a graphical user interface within the Affiliated MP Site that is competitive
in all material respects with interfaces of other similar sites based on
similar technology. AOL reserves the right to conduct focus group testing to
assess compliance herewith.
5. Service Level Response. MP agrees to provide the following service levels in
response to problems with or improvements to the Affiliated MP Site:
o For material functions of software that are or have become substantially
inoperable, MP will provide a bug fix or workaround within two (2)
business days after the first report of such error.
o For functions of the software that are impaired or otherwise fail to
operate in accordance with agreed upon specifications, MP will provide a
bug fix or workaround within three (3) business days after the first
report of such error.
o For errors disabling only certain non-essential functions, MP will
provide a bug fix or workaround within sixty (60) days after the first
report of such error.
o For all other errors, MP will address these requests on a case-by-case
basis as soon as reasonably feasible.
6. Monitoring. AOL Network Operations Center will work with a MP-designated
technical contact in the event of any performance malfunction or other
emergency related to the Affiliated MP Site and will either assist or work
in parallel with MP's contact using MP tools and procedures, as applicable.
The Parties will develop a process to monitor performance and AOL Member
behavior with respect to access, capacity, security and related issues both
during normal operations and during special promotions/events.
7. Telecommunications. The Parties agree to explore encryption methodology to
secure data communications between the Parties' data centers. The network
between the Parties will be configured such that no single component failure
will significantly impact AOL Users. The network will be sized such that no
single line runs at more than 70% average utilization for a 5-minute peak in
a daily period.
8. Security Review. MP and AOL will work together to perform an initial
security review of, and to perform tests of, the MP system, network, and
service security in order to evaluate the security risks and provide
recommendations to MP, including periodic follow-up reviews as reasonably
required by MP or AOL. MP will fix any security risks or breaches of
security as may be identified by AOL's Operations Security and not
reasonably disagreed with by MP. Specific services to be performed on behalf
of AOL's Operations Security team will be as determined by AOL in its sole
discretion.
9. Technical Performance. MP will perform the following technical obligations
(and any updates thereto provided by AOL from time to time):
o MP will design the Affiliated MP Site to support the Windows version of
the Microsoft Internet Explorer 4.0 browser, and make commercially
reasonable efforts to support all other AOL browsers listed at:
"xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxXxxxx.xxxx."
o MP will configure the server from which it serves the site to examine the
HTTP User-Agent field in order to identify the "AOL Member-Agents" listed
at: "xxxx://xxxxxxxxx.xxxx.xxx.xxx/Xxxx0Xxxx.xxxx."
o MP will design its site to support HTTP 1.0 or later protocol as defined
in RFC 1945 (available at "xxxx://xx.xxxxxxxx.xxx/xxx/xxx0000.xxxx") and
to adhere to AOL's parameters for refreshing cached information listed at
"xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxxXxxx.xxxx."
24
EXHIBIT F
STANDARD ONLINE COMMERCE TERMS & CONDITIONS
1. AOL Network Distribution. MP will not authorize or permit any third party
to distribute or promote the MP Products or any MP Interactive Site through
the AOL Network absent AOL's prior written approval, which approval shall
not be unreasonably withheld. The Promotions and any other promotion or
advertisement purchased from or provided by AOL will link only to the
Affiliate MP Site.
2. Provision of Other Content. In the event that AOL notifies MP that (i) as
reasonably determined by AOL, any Content within the Affiliated MP Site
violates AOL's then-standard Terms of Service (as set forth on the America
Online(R) brand service), the terms of this Agreement or any other
standard, written AOL policy or (ii) AOL reasonably objects to the
inclusion of any Content within the Affiliated MP Site (other than any
specific items of Content which may be expressly identified in this
Agreement), then MP will take commercially reasonable steps to block access
by AOL Users to such Content using MP's then-available technology. In the
event that MP cannot, through its commercially reasonable efforts, block
access by AOL Users to the Content in question, then MP will 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. MP will cooperate with AOL's reasonable requests to the
extent AOL elects to implement any such access restrictions.
3. Contests. MP will take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted or promoted through the
Affiliated MP Site (a "Contest") complies with all applicable federal,
state and local laws and regulations.
4. Navigational Icons. Subject to the prior consent of MP, which consent will
not be unreasonably withheld, AOL will be entitled to establish
navigational icons, links and pointers connecting the Affiliated MP Site
(or portions thereof) with other content areas on or outside of the AOL
Network.
5. Disclaimers. Upon AOL's request, MP agrees to include within the Affiliated
MP Site a product disclaimer (the specific form and substance to be
mutually agreed upon by the Parties) indicating that transactions are
solely between MP and AOL Users purchasing MP Products from MP.
6. AOL Look and Feel. MP acknowledges and agrees that AOL will own all right,
title and interest in and to the elements of graphics, design,
organization, presentation, layout, user interface, navigation and
stylistic convention (including the digital implementations thereof) which
are generally associated with online areas contained within the AOL Network
("the AOL Look and Feel"), subject to MP's ownership rights in any MP
trademarks or copyrighted material within the Affiliated MP Site.
7. Management of the Affiliated MP Site. MP will manage, review, delete, edit,
create, update and otherwise manage all MP Products available on or through
the Affiliated MP Site, in a timely and professional manner and in
accordance with the terms of this Agreement. MP will ensure that each
Affiliated MP Site is current, accurate and well-organized at all times. MP
warrants that the MP Products and other Content contained therein: (i) will
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) will not violate AOL's
then-applicable Terms of Service; and (iii) will not violate any applicable
law or regulation, including those relating to contests, sweepstakes or
similar promotions. Additionally, MP 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. MP also warrants that a reasonable
basis exists for all MP Product performance or comparison claims appearing
through the Affiliated MP Site. AOL will have no obligations with respect
to the MP Products available on or through the Affiliated MP Site,
including, but not limited to, any duty to review or monitor any such MP
Products.
8. Duty to Inform. MP will promptly inform AOL of any information related to
the MP Products or Affiliated MP Site of which MP has actual knowledge
which is reasonably likely to lead to a claim, demand, or liability of or
against AOL and/or its affiliates by any third party.
9. Customer Service. It is the sole responsibility of MP to provide customer
service to persons or entities purchasing MP Products through the AOL
Network ("Customers"). MP will bear full responsibility for all customer
service, including without limitation, order processing, billing,
fulfillment, shipment, collection and other customer service associated
with any MP Products offered, sold or licensed through the Affiliated MP
Site, and AOL will have no obligations whatsoever with respect thereto. MP
will receive all emails from Customers via a computer available to MP's
customer service staff and generally respond to such emails within one
business day of receipt. MP will receive all orders electronically and
generally process all orders within one business day of receipt, provided
MP Products ordered are not advance order items. MP will ensure that all
orders of MP Products are received, processed, fulfilled and delivered on a
timely and professional basis. MP will prominently display for the benefit
of AOL Users who purchase MP Products through such Affiliated MP Site its
money back satisfaction guarantee policy. MP will bear all responsibility
for compliance with federal, state and local laws in the event that MP
Products are out of stock or are no longer available at the time an order
is received. MP will also comply with the requirements of any federal,
state or local consumer protection or disclosure law. Payment for MP
Products will be collected by MP directly from customers. MP's order
fulfillment operation will be subject to AOL's reasonable review.
10. Production Work. In the event that MP requests AOL's production assistance
in connection with (i) ongoing programming and maintenance related to the
Affiliated MP Site, (ii) a redesign of or addition to the Affiliated MP
Site (e.g., a change to an existing screen format or
25
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, MP will 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 will notify MP 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 agreed-upon Production Plan,
such agreement will be reflected in a separate work order signed by the
Parties. To the extent MP elects to retain a third party provider to
perform any such production work, work produced by such third party
provider must generally conform to AOL's production Standards & Practices
(a copy of which will be supplied by AOL to MP upon request). The specific
production resources which AOL allocates to any production work to be
performed on behalf of MP will be as determined by AOL in its sole
discretion.
11. Overhead Accounts. To the extent AOL has granted MP any overhead accounts
on the AOL Service, MP will be responsible for the actions taken under or
through its overhead accounts, which actions are subject to AOL's
applicable Terms of Service and for any surcharges, including, without
limitation, all premium charges, transaction charges, and any applicable
communication surcharges incurred by any overhead Account issued to MP, but
MP will not be liable for charges incurred by any overhead account relating
to AOL's standard monthly usage fees and standard hourly charges, which
charges AOL will bear. Upon the termination of this Agreement, all overhead
accounts, related screen names and any associated usage credits or similar
rights, will automatically terminate. AOL will have no liability for loss
of any data or content related to the proper termination of any overhead
account.
12. AOL User Communications. To the extent MP sends any form of communications
to AOL Users, MP will promote the Affiliated MP Site as the location at
which to purchase Products (as compared to any more general or other site
or location). In addition, MP will not encourage AOL Users to take any
action inconsistent with the scope and purpose of this Agreement, including
without limitation, the following actions: (a) using Content other than the
Licensed Content; (b) bookmarking of Interactive Sites other than the
Affiliated MP Site; (c) using Interactive Sites other than those covered by
the revenue-sharing provisions herein; (d) changing the default home page
on the AOL browser; or (e) using any Interactive Service other than AOL.
13. Merchant Certification Program. MP agrees, to the extent determined by MP
to be in its commercially reasonable best interests, to participate in any
generally applicable "Certified Merchant" program operated by AOL or its
authorized agents or contractors; provided, however, that MP's failure to
so participate may require modifications to Exhibit A. Such program may
require merchant participants on an ongoing basis to meet certain
reasonable 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 will 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. Navigation Tools. To the extent AOL grants MP any "keywords" on the AOL
Service or "search terms" on XXX.xxx (collectively, "Keywords"), the
Keywords will be subject to availability and will consist only of MP's
registered trademarks. AOL reserves the right at any time to revoke MP's
use of any Keywords that are not registered trademarks of MP. To the extent
AOL allows AOL Users to "bookmark" the URL or other locator for the MP
Affiliated Site, such bookmarks will be subject to AOL's control at all
times. Upon the termination of this Agreement, MP's rights to any Keywords
and bookmarking will terminate.
26
1. EXHIBIT G
STANDARD LEGAL TERMS & CONDITIONS
1 Promotional Materials/Press Releases. Each Party will submit to the other
Party, for its prior written approval, which will not be unreasonably
withheld or delayed, any marketing, advertising, press releases, and all
other promotional materials related to the Affiliated MP Site and/or
referencing the other Party and/or its trade names, trademarks, and service
marks (the "Materials"); provided, however, that either Party's use of
screen shots of the Affiliated MP Site for promotional purposes will not
require the approval of the other Party so long as America Online(R) is
clearly identified as the source of such screen shots. Each Party will
solicit and reasonably consider the views of the other Party in designing
and implementing such Materials. Once approved, the Materials may be used
by a Party and its affiliates for the purpose of promoting the Affiliated
MP Site and the content contained therein and reused for such purpose until
such approval is withdrawn with reasonable prior notice. In the event such
approval is withdrawn, existing inventories of Materials may be depleted.
Notwithstanding the foregoing, either Party may issue press releases and
other disclosures as required by law or as reasonably advised by legal
counsel without the consent of the other Party and in such event, the
disclosing Party will use best efforts to provide at least (5) business
days prior written notice of such disclosure to the other Party.
2 License. MP 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. MP acknowledges and agrees that
the foregoing license permits AOL to distribute portions of the Licensed
Content in synchronism or timed relation with visual materials prepared by
MP or AOL (e.g., as part of an AOL "slideshow"). In addition, AOL Users
will have the right to access and use the Affiliated MP Site.
3 Trademark License. In designing and implementing the Materials and subject
to the other provisions contained herein, MP will be entitled to use the
following trade names, trademarks, and service marks of AOL: the "America
Online(R)" brand service, "AOL(TM)" service/software and AOL's triangle
logo; and AOL and its affiliates will be entitled to use the trade names,
trademarks, and service marks of MP (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 of the other
Party in the Marks of the other Party and agrees that all use of the other
Party's Marks will inure to the benefit, and be on behalf, of the other
Party. Each Party acknowledges that its utilization of the other Party's
Marks will not create in it, nor will it represent it has, any right,
title, or interest in or to such Marks other than the licenses expressly
granted herein. Each Party agrees not to do anything contesting or
impairing the trademark rights of the other Party.
5 Quality Standards. Each Party agrees that the nature and quality of its
products and services supplied in connection with the other Party's Marks
will conform to quality standards set by the other Party. Each Party agrees
to supply the other Party, upon request, with a reasonable number of
samples of any Materials publicly disseminated by such Party which utilize
the other Party's Marks. Each Party will comply with all applicable laws,
regulations, and customs and obtain any required government approvals
pertaining to use of the other Party's marks.
6 Infringement Proceedings. Each Party agrees to promptly notify the other
Party of any unauthorized use of the other Party's Marks of which it has
actual knowledge. Each Party will have the sole right and discretion to
bring proceedings alleging infringement of its Marks or unfair competition
related thereto; provided, however, that each Party agrees to provide the
other Party with its reasonable cooperation and assistance with respect to
any such infringement proceedings.
7 Representations and Warranties. Each Party represents and warrants to the
other Party that: (i) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of
it hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not
and will not violate any agreement to which such Party is a party or by
which it is otherwise bound; (iii) when executed and delivered by such
Party, this Agreement will constitute the legal, valid and binding
obligation of such Party, enforceable against such Party in accordance with
its terms; and (iv) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter
hereof that are not expressly provided for in this Agreement. MP hereby
represents and warrants that it possesses all authorizations, approvals,
consents, licenses, permits, certificates or other rights and permissions
necessary to sell the MP 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 will take reasonable steps, at least substantially
equivalent to the steps it takes to protect its own proprietary
information, during the term of this Agreement, and for a period of three
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
will 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 will use best efforts
to provide at least five (5) business days prior written notice of such
proposed disclosure to the other Party, and where practical, shall allow
the other Party to review such disclosure. Further, in the event such
disclosure is required of either Party, or is reasonably
27
determined by either Party's counsel to be necessary under the laws, rules
or regulations of the Securities and Exchange Commission or any other
applicable governing body, such Party will (i) redact mutually agreed-upon
portions of this Agreement to the fullest extent permitted under applicable
laws, rules and regulations and (ii) submit a request to such governing
body that such portions and other provisions of this Agreement receive
confidential treatment under the laws, rules and regulations of the
Securities and Exchange Commission or otherwise be held in the strictest
confidence to the fullest extent permitted under the laws, rules or
regulations of any other applicable governing body.
9 Limitation of Liability; Disclaimer; Indemnification. LIABILITY. UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH
OF THE AGREEMENT, THE SALE OF MP PRODUCTS, THE FRAUDULENT PURCHASE OF MP
PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE,
XXX.XXX OR THE AFFILIATED MP SITE, OR ARISING FROM ANY OTHER PROVISION OF
THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS ("COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED
THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY
DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO
INDEMNIFICATION PURSUANT TO SECTION 9.2. EXCEPT AS PROVIDED IN SECTION 9.2,
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE AGGREGATE
AMOUNT OF PAYMENT OBLIGATIONS OWED TO OR PAID BY THE OTHER PARTY HEREUNDER,
AS APPLICABLE; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY
PURSUANT TO SECTION 4.
9.1 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 MP SITE, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY
DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF THE AFFILIATED MP
SITE.
9.2 Indemnity. Either Party will defend, indemnify, save and hold harmless the
other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims, demands, liabilities, costs or expenses, including reasonable
attorneys' fees ("Liabilities"), resulting from the indemnifying Party's
material breach of any duty, representation, or warranty of this Agreement,
except where Liabilities result from the gross negligence or knowing and
willful misconduct of the other Party.
9.3 Claims. Each Party agrees to (i) promptly notify the other Party in writing
of any indemnifiable claim and give the other Party the opportunity to
defend or negotiate a settlement of any such claim at such other Party's
expense, and (ii) cooperate fully with the other Party, at that other
Party's expense, in defending or settling such claim. Each Party reserves
the right, at its own expense, to assume the exclusive defense and control
of any matter otherwise subject to indemnification by the other Party
hereunder, and in such event, the other Party will have no further
obligation to provide indemnification for such matter hereunder.
9.4 Acknowledgment. AOL and MP each acknowledges that the provisions of this
Agreement were negotiated to reflect an informed, voluntary allocation
between them of all risks (both known and unknown) associated with the
transactions contemplated hereunder. The limitations and disclaimers
related to warranties and liability contained in this Agreement are
intended to limit the circumstances and extent of liability. The provisions
of this Section 9 will be enforceable independent of and severable from any
other enforceable or unenforceable provision of this Agreement.
10 Solicitation of AOL Users. During the term of this Agreement, and for the
two-year period following the expiration or termination of this Agreement,
neither MP nor its agents will use the AOL Network to (i) solicit, or
participate in the solicitation of AOL Users when that solicitation is for
the benefit of any entity which could reasonably be construed to be or
become in competition with AOL or (ii) promote any services which could
reasonably be construed to be in competition with AOL including, but not
limited to, services available through the Internet. In addition, MP may
not send AOL Users e-mail communications promoting MP's Products through
the AOL Network without a "Prior Business Relationship." For purposes of
this Agreement, a "Prior Business Relationship" will mean that the AOL User
has either (i) engaged in a transaction with MP through the AOL Network or
(ii) voluntarily provided information to MP through a contest,
registration, or other communication, which included notice to the AOL User
that the information provided by the AOL User could result in an e-mail
being sent to that AOL User by MP or its agents. A Prior Business
Relationship does not exist by virtue of an AOL User's visit to an
Affiliated MP Site (absent the elements above). More generally, MP will be
subject to any standard policies regarding e-mail distribution through the
AOL Network which AOL may implement.
11 Collection of User Information. MP is prohibited from collecting AOL Member
screennames or AOL User email addresses from public or private areas of the
AOL Network, except as specifically provided below. MP will ensure that any
survey, questionnaire or other means of collecting AOL Member screennames
or AOL User email addresses, names, addresses or other identifying
information ("User Information"), including, without limitation, requests
directed to specific AOL Member screennames or AOL User email addresses and
automated methods of collecting such information (an "Information Request")
complies with (i) all applicable laws and regulations and (ii) any privacy
policies which have been issued by AOL in writing during the Term (the "AOL
Privacy Policies"). Each Information Request will clearly and conspicuously
specify to the AOL Users at issue the purpose for which User
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Information collected through the Information Request will be used (the
"Specified Purpose").
12 Use of User Information. MP will restrict use of the User Information
collected through an Information Request to the Specified Purpose. In no
event will MP (i) provide User Information to any third party (except to
the extent specifically (a) permitted under the AOL Privacy Policies or (b)
authorized by the members in question), (ii) rent, sell or barter User
Information, (iii) identify, promote or otherwise disclose such User
Information in a manner that identifies AOL Users as end-users of the AOL
Service, XXX.xxx or the AOL Network or (iv) otherwise use any User
Information in contravention of Section 10 above. Notwithstanding the
foregoing, in the case of AOL Members who purchase MP Products from MP, MP
will be entitled to use User Information from such AOL Members as part of
MP's aggregate list of Customers; provided that MP's use does not in any
way identify, promote or otherwise disclose such User Information in a
manner that identifies such AOL Members as end-users of the AOL Service,
XXX.xxx or the AOL Network. In addition, MP will not use any User
Information for any purpose (including any Specified Purpose) not directly
related to the MP Products or the business purpose of the Affiliated MP
Site. Provided that, MP will not use any rights granted pursuant to this
provision to direct or drive individuals or entities to any other
Interactive Site other than the Affiliated MP Site.
13 Excuse. Neither Party will be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform
as required by this Agreement as a result of any causes or conditions which
are beyond such Party's reasonable control and which such Party is unable
to overcome by the exercise of reasonable diligence; provided, however,
that the other Party may terminate the Agreement upon written notice if
such cause or condition persists for more than sixty (60) days.
14 Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the
other Party. Neither Party will have any right, power or authority to enter
into any agreement for or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other Party. This Agreement will
not be interpreted or construed to create an association, agency, joint
venture or partnership between the Parties or to impose any liability
attributable to such a relationship upon either Party.
15 Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be
deemed to have been delivered and given for all purposes on the delivery
date if delivered by electronic mail to screenname "XXXXxxxxx@xxx.xxx or
(i) on the delivery date if delivered personally to the Party to whom the
same is directed; (ii) one business day after deposit with a commercial
overnight carrier, with written verification of receipt, or (iii) 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,
to the person(s) specified herein at the address of the Party set forth in
the first paragraph of this Agreement. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs and the
Deputy General Counsel.
16 No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to
exercise any right under this Agreement will not be construed as a waiver
or relinquishment to any extent of such Party's right to assert or rely
upon any such provision or right in that or any other instance; rather, the
same will be and remain in full force and effect.
17 Return of Information. Upon the expiration or termination of this
Agreement, each Party will, upon the written request of the other Party,
return or destroy (at the option of the Party receiving the request) all
confidential information, documents, manuals and other materials specified
the other Party.
18 Survival. Sections 8 through 12 of this Exhibit G, will survive the
completion, expiration, termination or cancellation of this Agreement.
19 Entire Agreement. This Agreement sets forth the entire agreement and
supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein. Neither Party will be bound by, and each
Party specifically objects to, any term, condition or other provision which
is different from or in addition to the provisions of this Agreement
(whether or not it would materially alter this Agreement) and which is
proffered by the other Party in any correspondence or other document,
unless the Party to be bound thereby specifically agrees to such provision
in writing.
20 Amendment. No change, amendment or modification of any provision of this
Agreement will be valid unless set forth in a written instrument signed by
the Party subject to enforcement of such amendment, and in the case of AOL,
by an executive of at least the same standing to the executive who signed
the Agreement.
21 Further Assurances. Each Party will take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or
continuing performance of this Agreement.
22 Assignment. Neither Party will assign this Agreement or any right, interest
or benefit under this Agreement without the prior written consent of the
other Party; provided that, in the event of a Party's sale, consolidation,
or merger, the other Party's prior approval shall not be required. Subject
to the foregoing, this Agreement will be fully binding upon, inure to the
benefit of and be enforceable by the Parties hereto and their respective
successors and assigns.
23 Construction; Severability. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be
construed or if any such provision is held invalid by a court with
jurisdiction over the Parties to this Agreement, (i) such provision will be
deemed to be restated to reflect as nearly as possible the original
intentions of the Parties in accordance with applicable law, and (ii) the
remaining terms, provisions, covenants and restrictions of this Agreement
will remain in full force and effect.
24 Remedies. Except where otherwise specified, the rights and remedies granted
to a Party under this Agreement are cumulative and in addition to, and not
in lieu of, any other rights or remedies which the Party may possess at law
or in equity; provided that, in connection with any dispute hereunder, MP
will be not entitled to offset any amounts that
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it claims to be due and payable from AOL against amounts otherwise payable
by MP to AOL.
25 Applicable Law; Jurisdiction. This Agreement will be interpreted, construed
and enforced in all respects in accordance with the laws of the
Commonwealth of Virginia except for its conflicts of laws principles..
26 Export Controls. Both Parties will adhere to all applicable laws,
regulations and rules relating to the export of technical data and will not
export or re-export any technical data, any products received from the
other Party or the direct product of such technical data to any proscribed
country listed in such applicable laws, regulations and rules unless
properly authorized.
27 Headings. The captions and headings used in this Agreement are inserted for
convenience only and will not affect the meaning or interpretation of this
Agreement.
28 Counterparts. This Agreement may be executed in counterparts, each of which
will be deemed an original and all of which together will constitute one
and the same document.
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