EXHIBIT 10.14
Note: Portions of this exhibit indicated by "[*]" are subject to a confidential
treatment request, and have been omitted from this exhibit. Complete, unredacted
copies of this exhibit have been filed with the Securities and Exchange
Commission as part of this Company's confidential treatment request.
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
------------------------------
This agreement (the "Agreement"), effective as of January 1, 1999 (the
"Effective Date"), is made and entered into by and between America Online, Inc.
("AOL"), a Delaware corporation, with its principal offices at 00000 XXX Xxx,
Xxxxxx, Xxxxxxxx 00000, on the one hand, and E-Sport, Inc. ("E-Sport"), a
Delaware corporation, with its principal offices at 0000 X. Xxxxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and its wholly-owned subsidiaries, Pro
Sports Xchange, Inc. ("PSX"), a Delaware corporation, successor-in-interest to
Pro Sports Xchange, a California limited liability company, with its principal
offices at 0000 X. Xxxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 and
Athlete Direct, Inc. ("Athlete Direct"), a Delaware corporation, successor-in-
interest to Athlete Direct, LLC, a California limited liability corporation,
with its principal offices at 0000 X. Xxxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 (E-Sport, PSX and Athlete Direct shall be collectively referred
to herein as "Interactive Content Provider" or "ICP") (each of AOL and ICP shall
be referred to herein as a "Party" and collectively as the "Parties").
INTRODUCTION
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AOL and ICP each desires that ICP provide the Online Area (as defined
below), including ICP data feeds as specified herein and certain AOL
screens/pages through the AOL Network (as defined below), subject to the terms
and conditions set forth in this Agreement. Defined terms used but not defined
in the body of the Agreement or in Exhibits A or C shall be as defined on
Exhibit B attached hereto.
TERMS
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1. DISTRIBUTION; PROGRAMMING
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1.1 Online Area. ICP shall work diligently to develop and implement the
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Online Area, consisting of the specific Content described on Exhibit
A.1 attached hereto. ICP shall develop the design of the Online Area
in consultation with AOL and in accordance with any standard design
and content publishing guidelines provided to ICP by AOL (including,
without limitation, any HTML publishing guidelines). ICP shall not
authorize or permit any third party to distribute the Licensed Content
on ICP's behalf through the AOL Network absent AOL's prior written
approval. The inclusion of any additional Content in the Online Area
(including, without limitation, any features, functionality or
technology) not expressly described on Exhibit A shall be subject to
AOL's prior written approval.
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1.2 Licenses.
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1.2.1 License to Licensed Content (other than Feeds). ICP hereby grants
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AOL a non-exclusive, worldwide license to use, market, store,
distribute, display, communicate, perform, transmit and promote the
Licensed Content (other than the Feeds), (or any portion thereof) as
provided herein, through such areas or features of the AOL Network
as AOL deems appropriate.
1.2.2 License to Feeds. In addition, ICP hereby grants AOL a
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non-exclusive, worldwide license (i) to use, market, store,
distribute, display, communicate, perform, transmit and promote the
Feeds (as defined in Exhibit A), (or any portion thereof), through
the AOL Service and XXX.xxx., AOL's primary site on the World Wide
Web portion of the Internet and all AOL branded and co-branded
Internet sites providing content and promotions for AOL products and
services, together with any mirrored or similar versions of such
site(s) (collectively, "XXX.xxx"), and (ii) to sublicense its rights
under this Section 1.2.2 to third parties producing programming for
XXX.xxx for the sole purpose of enabling such third parties to
produce such AOL-branded or AOL co-branded programming for XXX.xxx
as provided below. To the extent that the Feeds (or any portion
thereof) are distributed by AOL on XXX.xxx or on non-AOL Service
areas of the AOL Network, AOL shall (a) ensure that the Feeds will
be distributed on pages that are [*] (b) [*] (c) promote the [*] as
a part of such Content (e.g., [*]at the bottom of an article), and
(d) [*]. Nothing contained in this Section 1.2.2 shall be construed
to prevent or limit the offer, license or sale of Advertisements
anywhere on the AOL Network. [*]
1.2.3 Feeds. ICP represents and warrants to AOL that it has the
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authority to grant the above licenses to AOL (either through
ownership or license) to use the Licensed Content as described in
this Agreement. ICP shall provide AOL the Licensed Content in the
form or media reasonably necessary for AOL to distribute it on the
AOL Network as further set forth on Exhibits A and E-1 attached
hereto. Without limiting the generality of the foregoing, during the
Term of this Agreement, AOL may store via mirrored data centers,
tape, optical disks, or magneto optical disks backup copies of the
Feeds [*] for purposes of record-keeping, defending
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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against third-party claims, responding to official
inquiries, and fulfilling its obligations and exploiting the
rights granted to AOL pursuant to this Agreement. Under no
circumstances will AOL use such Feeds for any other purpose
during the Term of this Agreement. It is expressly
understood that following the expiration or termination of
this Agreement, AOL shall have the right to use the Licensed
Content, including without limitation, the Feeds, for a
runoff period not to exceed [*] days in the same manner as
such Content is permitted to be used during the Term.
Nothing in this Agreement shall constitute a sale or other
transfer of title from ICP to AOL of the Licensed Content,
or any portion thereof. All rights with respect to the
Licensed Content not expressly granted to AOL herein are
reserved to ICP.
1.2.4 Ownership. AOL shall own, and ICP shall have no right,
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title or interest in or to, all [*] Screens. ICP shall
own, and AOL shall have no ownership right, title or
interest in or to, [*] Screens.
1.3 Other Interactive Areas.
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1.3.1 AOL Approval. ICP shall not be permitted to establish any
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"pointers" or links between the Licensed Content and any
other area on or outside of the AOL Network, including,
without limitation, sites on the World Wide Web portion of
the Internet, without the prior written approval of AOL.
[*], subject to [*]. In addition, AOL may [*] its approval
(at any time) to specific portions of Content, Products, or
functionality within a Linked Interactive Site, [*]. In such
case, establishment of the link from the Licensed Content to
the Linked Interactive Site will be subject to mutual
agreement of the Parties regarding the means by which access
will be restricted to the approved portions of the Linked
Interactive Site. AOL shall give ICP a [*] day period to
remove any specific Content, Products or functionality
within a Linked ICP Interactive Site that AOL restricts its
approval to pursuant to this Section 1.3.1 before
terminating the link to such site. All Linked ICP
Interactive Sites shall comply with the Operating Standards
set forth in Exhibit E-2.
1.3.2 Management. AOL shall have no obligations of any kind with
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respect to any Linked Interactive Site. ICP shall be
responsible for any hosting or communication costs
associated with any Linked Interactive Sites (including,
without limitation, the costs associated with (i) any
agreed-upon direct connections between the AOL Network and a
Linked Interactive Site or (ii) a mirrored version of a
Linked Interactive Site).
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
3
Any Linked Interactive Sites shall be subject to the license
set forth in Section 1.2.1 above. ICP will permit AOL
Members to access and use any Linked ICP Interactive Site
[*] during the Term if [*] (other than ICP employees,
agents, contractors and partners) [*]. If such Linked ICP
Interactive Site is not generally provided to any such users
[*], then the terms and conditions for AOL Members shall be
[*]. [*]; provided, however, that the Parties agree and
acknowledge that some features or areas of the Linked ICP
Interactive Site may require a registration process for all
users generally (e.g. a premium service) and that such
registration process for AOL Members shall be no more
burdensome than for any other user and shall be upon terms
and conditions [*].
1.3.3 Excessive Traffic Diversion. [*] To the extent that AOL
notifies ICP in writing that, in AOL's reasonable judgment,
links from the Linked ICP Interactive Site cause an
excessive amount of AOL traffic to be diverted outside of
such site and the AOL Network in a manner that has a
detrimental effect on the traffic flow of the AOL audience,
then ICP [*]. In the event that ICP cannot or does not [*]
diverted traffic from the Linked ICP Interactive Site, AOL
reserves the right to terminate the links from the AOL
Network to the Linked ICP Interactive Site at issue if such
failure remains uncured after [*] days written notice
thereof.
1.4 Placements. ICP shall pay AOL (in accordance with Section 1.5 below),
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and AOL shall provide to ICP the [*] rights ("Placements") set forth
in Exhibit A.4. The Placements and any other promotions or
advertisements (other than AOL Advertisements which ICP has a right to
sell pursuant to Section 2.1 of this Agreement) purchased from or
provided by AOL pursuant to Exhibit A of this Agreement will be used
by ICP [*].
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
4
1.5 Placements Payments. For the Placements, ICP shall pay AOL the
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following amounts:
(i) First Year (January 1, 1999 to December 31, 1999). For the
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first year of the Term, ICP shall pay AOL [*] for the
Placements.
(ii) Second Year (January 1, 2000 to December 31, 2000). For the
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second year of the Term, ICP shall pay AOL [*] for the
Placements.
(iii) Last Six Months of Initial Term (January 1, 2001 to June 30,
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2001). For the last six (6) months of the Initial Term, ICP
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shall pay AOL [*] for the Placements.
1.6 Content Payments. For the Licensed Content and production and other
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services to be provided pursuant to this Agreement, AOL shall pay ICP
as follows:
(i) First Year (January 1, 1999 to December 31, 1999). For the
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first year of the Term, AOL shall pay ICP [*].
(ii) Second Year (January 1, 2000 to December 31, 2000). For the
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second year of the Term, AOL shall pay ICP [*].
(iii) Last Six Months of Initial Term (January 1, 2001 to June 30,
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2001). For the last six (6) months of the Initial Term: AOL
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shall pay ICP [*].
(iv) Additional Payments. AOL shall pay ICP [*] for each
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additional license granted to AOL by ICP [*]. Such payment
shall be added to the Content Payments to be made by AOL
pursuant to subsections 1.6(i)-(iii) above.
1.7 Net Payments. The Parties shall satisfy their obligations under
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Sections 1.5 and 1.6 through [*].
1.8 Exclusivity. [*]
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[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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2. ADVERTISING AND TRANSACTIONS
----------------------------
2.1 Advertising Sales. AOL owns all right, title and interest in and to
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the advertising and promotional spaces within the AOL Network
(including, without limitation, advertising and promotional spaces on
any AOL forms or pages preceding, framing or otherwise associated with
the Licensed Content or preceding, following or framing any Linked
Interactive Sites). The specific advertising inventory within any AOL
forms or pages shall be as reasonably determined by AOL. AOL shall
have the exclusive right to sell AOL Advertisements [*]. AOL hereby
grants ICP the exclusive right to license or sell AOL Advertisements
on [*], subject to [*].
2.2 Advertising Policies.
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2.2.1 AOL Advertisements. Any AOL Advertisements sold by ICP or
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its agents shall be subject to AOL's then-standard
advertising policies, [*].
2.2.2 Linked Interactive Site Advertisements. ICP shall ensure
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that AOL Members linking to any Linked ICP Interactive Site
[*] from the AOL Network do not receive advertisements,
promotions or links (i) for any entity [*] (ii) in violation
of AOL's then-standard advertising policies, or (iii) in
violation of AOL's exclusivity or other preferential rights
or commitments [*]. In the event that AOL notifies ICP in
writing that any advertising or promotional Content in or
through any Linked ICP Interactive Site (a "Linked ICP
Interactive Site Advertisement") is in violation of AOL's
then-standard advertising policies or this Section 2.2.2,
then ICP shall [*] by AOL Members to such advertising [*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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in question, then ICP shall provide AOL prompt written
notice of such fact. AOL may restrict access from the AOL
Network to the advertising in question using technology
available to AOL or, in the event such restricted access is
not reasonably practicable, as determined by AOL in AOL's
sole discretion, terminate the link from the AOL Network to
the Linked ICP Interactive Site until such time as the [*]
in question is no longer displayed. ICP will cooperate with
AOL's [*] requests to the extent AOL elects to implement any
such access restrictions.
2.3 Advertising Registration Form. In connection with the sale by
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ICP or its agents of an AOL Advertisement, ICP shall, in each
instance, provide AOL with a completed standard AOL Advertising
Registration Form relating to such AOL Advertisement. ICP shall
take all reasonable steps necessary to ensure that any AOL
Advertisement sold by ICP complies with all applicable federal,
state and local laws and regulations.
2.4 Advertising Revenues. AOL shall be entitled to [*] of all
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Advertising Revenues generated by the license or sale of AOL
Advertisements on the [*] Screens. ICP shall be entitled to [*]
of Advertising Revenues generated by the license or sale of AOL
Advertisements on the [*] Screens.
2.5 Interactive Commerce. To the extent ICP desires to offer, sell
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or license Products, such merchandising shall be subject to (i)
the terms of this Agreement, (ii) the requirements posted at
keyword "Marketplace Policy" on the America Online(R) brand
service (or such other keyword as AOL may designate during the
Term), (iii) [*] (iv) [*] (v) the then-current requirements of
AOL's merchant certification program, (vi) ICP implementing
sufficient procedures to protect the security of all
merchandising on a Linked ICP Interactive Site (i.e., ICP shall
as of the Effective Date use 40-bit SSL technology and, if
requested by AOL upon [*] days notice thereof to ICP, 128-bit
SSL, and (vii) the requirement that ICP take all reasonable steps
necessary to conform its promotion and sale of Products through a
Linked ICP Interactive Site to the then-existing technologies
identified by AOL which are optimized for the AOL Service
including, without limitation, any "quick checkout" tool which
AOL may implement to facilitate purchase of Products by AOL
Members through the ICP Linked Interactive upon [*] days notice
thereof to ICP. For purposes of subsection (iii) above, AOL
hereby approves the categories of products set forth in Exhibit
I. [*]. If, in accordance
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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with Section 1.3.1, [*]
2.6 Member Benefits. ICP will [*] promote through the Online Area any
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special or promotional offers related to the Licensed Content made
generally available by or on behalf of ICP through any other similar
or like distribution channel. In addition, ICP shall promote through
the Online Area on a regular and consistent basis special offers
exclusively available to AOL Members ("AOL Exclusive Offers"). ICP
shall, [*] feature at least one AOL Exclusive Offer for AOL Members
(except as otherwise mutually agreed upon by the Parties). The AOL
Exclusive Offer made available by ICP shall provide a [*] benefit to
AOL Members, either by virtue of a [*]. Specific AOL Exclusive Offers
to be made available by ICP shall include the following: [*]. ICP will
provide AOL with reasonable prior notice of AOL Exclusive Offers and
other special offers so that AOL can, in its editorial discretion,
market the availability of such offers.
3. PRODUCTION AND SUPPORT
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3.1 Production Work.
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(i) AOL Pages. AOL shall build the [*] Pages (as defined in Exhibit
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A) and Star Pages (as defined in Exhibit A) and such pages shall
be programmed and populated by ICP in accordance with this
Agreement. The forms of the [*] Pages and Star Pages shall be
as determined by AOL [*].
(ii) Production Responsibility. Except as otherwise provided herein,
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ICP shall be responsible for all production, including
maintenance, of the Stars Online Area. Unless otherwise mutually
agreed upon in writing, ICP shall be responsible for all changes
to the [*] Area or the Feeds. [*] Any change requested by
ICP shall require AOL's prior approval, [*].
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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(iii) AOL Assistance with ICP's Production Responsibilities. In the
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event that ICP requests AOL's production assistance relating to
the Stars Online Area in connection with (i) the initial
development, design and construction of the Stars Online Area,
(ii) ongoing programming and maintenance related to the Stars
Online Area, (iii) a redesign of or addition to the Stars Online
Area (e.g., a change to an existing screen format or construction
of a new custom form), (iv) construction and maintenance of an
approved advertising, sponsorship or promotional area or online
"store," (v) production to modify work performed by a third party
provider or (vi) any other type of production work, ICP shall
work with AOL to develop detailed production plans for the
requested production assistance (the "Production Plan").
Following receipt of the final Production Plan, AOL shall notify
ICP 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 an agreed-upon
Production Plan, such agreement shall be reflected in a separate
work order signed by the Parties. All fees to be paid to AOL for
any such production work shall be paid in advance. To the extent
ICP 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 available at
Keyword "Styleguide." The specific production resources which AOL
allocates to any production work to be performed on behalf of ICP
shall be as determined by AOL in its sole discretion. With
respect to any routine production, maintenance or related
services which AOL reasonably determines are necessary for AOL to
perform in order to support the proper functioning and
integration of the Stars Online Area ("Routine Services"), ICP
will pay the then-standard fees charged by AOL for such Routine
Services.
(iv) Third Party Content. AOL will work to facilitate securing
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necessary rights for ICP to utilize certain Content (e.g.,
initially, [*], or substitutes therefor) necessary to produce the
[*] Area and [*] provided that, the Parties acknowledge that
certain third party consents may be necessary to secure such
rights and that AOL shall not be in breach of contract if it is
unable to secure such rights through reasonable efforts and ICP
shall not be in breach of contract if ICP's failure to produce
and program the [*] Area is caused solely by AOL's inability to
secure such rights. [*].
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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In addition, ICP shall ensure that its utilization of any news
feeds and/or other third party Content provided by AOL to ICP
hereunder complies with any and all contractual terms and
conditions on use to which AOL is subject as communicated by AOL
to ICP in writing or by email.
3.2 Publishing and Production Tools. AOL shall provide to ICP, [*] those
-------------------------------
of AOL's proprietary publishing tools (each a "Tool") reasonably
necessary (as determined by AOL) for ICP to develop and implement the
Licensed Content during the Term. ICP shall be granted a nonexclusive
license to use any such Tool, which license shall be subject to: (i)
ICP's compliance with all rules and regulations relating to use of the
Tools, as published from time to time by AOL, (ii) AOL's right to
withdraw or modify such license [*], and (iii) ICP's express
recognition that AOL provides all Tools on an "as is" basis, without
warranties of any kind. [*].
3.3 Training and Support. AOL shall make available to ICP standard AOL
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training and support programs related to ICP's management and
maintenance of the Licensed Content. ICP can select its training and
support program from the options then offered by AOL. [*]. In
addition, ICP [*] associated with its participation in any AOL
training programs (including [*] when training is conducted at ICP's
offices).
4. PROMOTION
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4.1 Cooperation. Each Party shall cooperate with and reasonably assist
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the other Party in supplying Content for marketing and promotional
activities which relate to the Online Area.
4.2 Interactive Site. The following promotions (collectively, the "AOL
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Promos") shall be included within each Linked ICP Interactive Site and
[*] ICP Interactive Site controlled by ICP and providing [*]
of Content substantially the same as or similar to, the Licensed
Content or any Linked ICP Interactive Site, (i.e., currently,
xxxx://xxx.xxxxxxxxxxxxx.xxx and xxxx://xxx.xxx.xxx) and all
successors thereto : (i) a [*] promotional button [*] appearing on the
[*] screen of such ICP Interactive Site to promote such AOL products
or services as AOL may reasonably designate [*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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; and (ii) a [*] "Try AOL" feature [*] through which users can obtain
promotional information about AOL products or services designated by
AOL and, at AOL's option, download or order the then-current version
of client software for such AOL products or services. AOL will provide
the creative content to be used in the AOL Promos. ICP shall post (or
update, as the case may be) the creative content supplied by AOL
within the spaces for the AOL Promos within [*] of its receipt of
such content from AOL. Without limiting any other reporting
obligations of the Parties contained herein, ICP shall provide AOL
with [*] written reports specifying [*] containing the AOL Promos
during the [*]. In the event that AOL elects to serve the AOL Promos
to such ICP Interactive Site from an ad server controlled by AOL or
its agent, ICP shall take all reasonable operational steps necessary
to facilitate such ad serving arrangement, including without
limitation, inserting HTML code designated by AOL on the pages of such
ICP Interactive Site on which the AOL Promos will appear. In addition,
within each such ICP Interactive Site, ICP shall, [*], provide (a) [*]
promotion for the keywords associated with ICP's Online Area, and (b)
[*].
4.3 Other Media. In ICP's television, radio, print and "out of home"
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(e.g., buses and billboards) advertisements relating to the [*] and in
any publications, programs, features or other forms of media relating
to the [*] over which ICP [*], ICP will include specific references or
mentions (verbally where possible) of the availability of ICP's Online
Area through the America Online(R) brand service, [*], as any
references that ICP makes to the [*] or any ICP Interactive Site
controlled by ICP and providing a [*] portion of Content substantially
the same as or similar to, the Licensed Content or any Linked ICP
Interactive Site (i.e., currently, xxxx://xxx.xxxxxxxxxxxxx.xxx and
xxxx://xxx.xxx.xxx) and all successors thereto (by way of site name,
related company name, URL or otherwise). Without limiting the
generality of the foregoing, [*], ICP's listing of the "URL" for such
Licensed Content or ICP Interactive Site will be accompanied by a [*]
listing of the "keyword" term on AOL for the appropriate Online Area.
4.4 Preferred Access Provider. When promoting AOL, ICP shall promote
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AOL as [*] access provider through which a user can access ICP's
Content and shall use [*] efforts to promote AOL [*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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as part of ICP's promotion of the Licensed Content hereunder.
4.5 Promotion of Athletes. [*]
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5. PAYMENTS AND REPORTING.
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5.1 Payment Schedule. [*]
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5.2 Reporting. On no less than a monthly basis, each Party shall supply
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or make available to the other Party reports containing the following
information:
5.2.1 Usage Data. AOL shall make available to ICP a monthly
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report specifying usage information for the Online Area for
the prior month in the format which is generally made
available to similarly situated interactive content
providers. In addition, for any Linked ICP Interactive Site
which AOL is caching, AOL shall supply ICP with monthly
reports reflecting aggregate impressions by AOL Members to
the cached version of the Linked ICP Interactive Site during
the prior month. For each Linked ICP Interactive Site, ICP
will supply AOL with monthly reports which reflect total
impressions by AOL Members to the Linked ICP Interactive
Site during the prior month.
5.2.2 Sales Reports. ICP will provide AOL in an automated manner
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with a monthly report in an AOL-designated format, detailing
the following AOL Purchaser activity in such period (and any
other information mutually agreed upon by the Parties or
reasonably required for measuring revenue activity by ICP
through the Linked ICP Interactive Sites): (i) summary sales
information by day (date, number of Products, number of
orders, total Transaction Revenues); and (ii) detailed sales
information (order date/timestamp (if technically feasible),
AOL Purchaser name and screenname, SKU or Product
description) (information in clauses (i) and (ii), "Sales
Reports"). AOL will be entitled to use the Sales Reports in
its business operations, subject to the terms of this
Agreement. More generally, each payment to be made by ICP
pursuant to Section 2.5 will be accompanied by a report
containing information which supports the payment, including
information identifying gross Transaction Revenues
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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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.), revenue sharing
with an ICP Marketing Partner (as defined in Exhibit B).
5.2.3 Promotional Commitments. ICP shall provide to AOL a
-----------------------
monthly report documenting its compliance with any
promotional commitments it has undertaken pursuant to
Section 4 in the form attached as Exhibit D hereto.
5.2.4 [*]
6. TERM, TERMINATION AND COMMERCIAL LAUNCH.
---------------------------------------
6.1 Term. Unless earlier terminated as set forth herein, the initial
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this Agreement shall be [*] from the Effective Date ("Initial
Term"). Upon the expiration of the Initial Term, AOL shall have the
right to renew this Agreement for up to [*] successive [*] terms
(each, a "Renewal Term" and together with the Initial Term, the
"Term"). ICP shall have the option to terminate this Agreement upon
[*] days notice within [*] days after the beginning of any Renewal
Term. ICP's obligations with respect to the Stars Online Area shall
begin immediately; however, the Stars Online Area shall be [*] in
the same manner as is provided in the Athlete Direct Interactive
Service Agreement (as defined below) [*]. Nothing contained in this
Agreement shall modify or amend that certain Interactive Services
Agreement by and between AOL and Athlete Direct, LLC, a California
limited liability corporation, dated April 1, 1997 (the "Athlete
Direct Interactive Services Agreement"), including without
limitation, the [*]. The Parties agree and acknowledge that the
Athlete Direct Interactive Services Agreement will expire on [*].
[*] therewith.
6.2 Termination for Breach. Either Party may terminate this Agreement
----------------------
at any time in the event of a material breach by the other Party
which remains uncured after [*] written notice thereof.
6.3 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
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
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liquidation or insolvency (whether voluntary or involuntary) which
is not dismissed within ninety (90) calendar days or (iv) makes an
assignment for the benefit of creditors.
6.4 Site and Content Preparation. ICP shall achieve Site and Content
----------------------------
Preparation of the [*] Area (as defined in Exhibit A) and the Star
Pages (as defined in Exhibit A) on or before March 15, 1999, the
Athlete Online Areas as defined and set forth in Exhibit A and the
rest of the Star Online Area (as defined in Exhibit A) on or before
March 31, 1999. "Site and Content Preparation" shall mean that ICP
shall have completed production of the Online Area and the Licensed
Content in accordance with this Agreement and completed all other
necessary work to prepare the Online Area and the Licensed Content
and any other related areas or screens to launch on the AOL Network
as contemplated hereunder. In the event ICP has not achieved Site
and Content Preparation on or before February 15, 1999, [*]. If ICP
has not completed such work by March 15, 1999 for the [*] Area and
the Star Pages, the dates provided in Exhibit A for the Athlete
Online Areas and by March 31, 1999 for the rest of the Stars Online
Area, then, in addition to any other remedies available, AOL shall
have the right to terminate this Agreement by giving ICP written
notice thereof. If ICP is delayed in achieving Site and Content
Preparation due to a failure by AOL to perform its obligations
under this Agreement and ICP notifies AOL in writing of such
failure and the resulting delay, then the timeframe referenced in
this Section shall each be extended by the amount of time of ICP's
delay solely attributable to such failure by AOL.
6.5 Termination of Prior Agreement. As of the Effective Date, the
------------------------------
following agreement shall terminate by mutual agreement: that
certain Content License Agreement by and between [*].
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
14
6.6 Termination for Change of Control/Ownership. [*]
-------------------------------------------
6.7 AOL Option. Without limiting any rights or remedies AOL may have
----------
pursuant to this Agreement, including without limitation, [*].
6.7.1 Option Fee. If AOL exercises its option to [*].
----------
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
15
6.7.2 [*].
---
7. TERMS AND CONDITIONS. The legal terms and conditions set forth on
--------------------
Exhibit C attached hereto are hereby made a part of this Agreement.
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
16
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
AMERICA ONLINE, INC. E-SPORT, INC.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxxxxxxxxxx
----------------------------- ------------------------------
Print Name: Xxxx X. Xxxxxxxx Print Name: Xxxx Xxxxxxxxxxxxxx
--------------------- -----------------------
Title: VP Title: C.O.O.
-------------------------- ----------------------------
Date: 2/17/99 Date: 2/16/99
--------------------------- -----------------------------
Tax ID/EIN#: 00-0000000
----------------------
PRO SPORTS XCHANGE, INC. ATHLETE DIRECT, INC.
By: /s/ Xxxx Xxxxxxxxxxxxxx By: /s/ Xxxx Xxxxxxxxxxxxxx
----------------------------- -------------------------------
Print Name: Xxxx Xxxxxxxxxxxxxx Print Name: Xxxx Xxxxxxxxxxxxxx
--------------------- -----------------------
Title: Secretary, VP Title: President
-------------------------- ----------------------------
Date: 2/16/99 Date: 2/16/99
--------------------------- -----------------------------
17
EXHIBIT A
---------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT B
---------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT C
---------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT D
---------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT E-1
-----------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT E-2
-----------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT F
---------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT G
---------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT H
----------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT I
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT J
---------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
EXHIBIT K
---------
[*]
[*] = THE REDACTED PORTION, INDICATED BY THIS SYMBOL, IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST.
