EXHIBIT 10.15
OPERATING AGREEMENT
BY AND BETWEEN
XXX INTERACTIVE MEDIA, INC.
AND
LIVEWORLD PRODUCTIONS, INC.
AUGUST 24, 1998
TABLE OF CONTENTS
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PAGE
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TABLE OF CONTENTS 1
INTRODUCTION AND RECITALS 2
1. DEFINITIONS 2
2. CREATION, DEVELOPMENT, INTEGRATION AND OPERATION OF THE SERVICES 6
- General Concept 6
- LWP Obligations 7
- CIM Obligations 12
- Exclusivity 13
- Future Services Integration 14
- Timeline 15
- Approval and Removal of Content 15
- Registration, Collection, Reporting, Ownership, Use and Mining
of End User Data. 16
- Use of Trademarks 19
- Ownership of Content 19
3. PROMOTION AND MARKETING 19
4. ADVERTISING INVENTORY AND REVENUE ALLOCATIONS, SALES AND OTHER FINANCIAL TERMS 21
5. ALTERNATE RESPONSIBILITIES, GUIDELINES AND FINANCIAL TERMS 34
6. MOST FAVORED NATION 38
7. TERM, RENEWAL AND TERMINATION 38
8. REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATIONS 38
9. GENERAL PROVISIONS 40
10. SIGNATURES 43
EXHIBITS 44
List of Exhibits 44
Exhibits A-T 45
08/26/98 LiveWorld Productions, Confidential Page 1
* Certain information in this Exhibit has been
omitted and filed with the Commission.
Confidental treatment has been requested with
respect to the omitted portions.
INTRODUCTION
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This Operating Agreement (this "Agreement"), effective as of August 24,
1998 (the "Effective Date"), is made and entered into by and between LiveWorld
Productions, Inc., a California corporation ("LWP"), with offices at 000 Xxxxxxx
Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx, and Xxx Interactive Media, Inc., a
Delaware corporation ("CIM"), with offices at 000 Xxxxx Xx., Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000.
RECITALS
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WHEREAS, LWP owns and operates certain Internet sites and services
available through the World Wide Web (the "Web"), including the Talk City
Service (as defined below) and the OnNow Service (as defined below)
(collectively, the "LWP Services"), and is seeking to cross-integrate these
Internet sites and services with partners; and
WHEREAS, CIM owns and operates certain Internet sites and services
available through the Web, and owns or creates other products and services, and
is seeking to integrate into such Internet sites and services certain online
community services; and
WHEREAS, CIM and LWP desire to create, develop and market co-branded online
community services that will be cross-linked between the Talk City Service
and/or the OnNow Service and the Web sites of CIM, in accordance with the terms
of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, LWP and CIM agree as follows:
1. DEFINITIONS. The following definitions shall apply to this Agreement.
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1.1 ADVERTISING. "Advertising" shall mean all online advertisements,
including but not limited to banner ads, "intermercials," and
Sponsorships (as defined below). "Advertising Revenue" shall mean
gross revenue charged to and received from each advertiser by LWP, CIM
or an Other Partner (as defined below) for the sale of Advertising in
the CIM Talk City Service (as defined below), the CIM Talk City Joint
Content Areas (as defined below), the CIM OnNow Service (as defined
below), the Talk City Service (as defined below), or the OnNow Service
(as defined below), or, if appropriate, the CIM Specific Areas (as
defined below). "Advertising Inventory" shall mean all Advertising
allocated to CIM, LWP or, if appropriate, an Other Partner.
1.2 CHAT. "Chat" shall mean an online chat among End Users originating
from one or more online services.
1.3 CIM ONNOW SERVICE. "CIM OnNow Service" shall mean the CIM OnNow co-
branded pages and Internet services providing a version of the OnNow
Service, which End Users access from links on CIM Sites and which
shall be created, maintained and operated pursuant to this Agreement.
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The CIM OnNow Service (i) shall include the full range of OnNow
functionalities, including but not limited to event guide, event
search, newsletters, and alerts, (ii) shall include the full range of
OnNow content and services, (iii) in some cases, by mutual agreement
of CIM and LWP, may include additional functions and content not
available on the OnNow Service, (iv) may exclude, as CIM may determine
from time to time at its discretion, functions and content that are
available on the Talk City Service or the OnNow Service and (v) shall
have a customized presentation such that End Users see a co-branded
display of the service and in some cases, by mutual agreement of CIM
and LWP, a customized display of the service's elements, such as, but
not limited to, promotional and featured content or banner ads.
1.4 CIM SITES. "CIM Sites" shall mean Web sites and/or Internet services
owned, operated, managed, distributed, authorized to be distributed,
promoted or licensed by or through or otherwise affiliated with CIM or
any CIM-Related Entity. A list of all current CIM Sites that will be
cross-integrated with the Talk City Service and/or the OnNow Service
(which list shall be subject to addition, amendment and modification
by CIM at any time in accordance with Section 2.2.1) is attached
hereto as EXHIBIT A.
1.5 CIM SPECIFIC AREAS. "CIM Specific Areas" shall mean the specific room,
rooms, or areas, including bulletin boards and auditorium events,
within the Talk City Service, the OnNow Service and the CIM Talk City
Joint Content Areas which are authorized and/or created with the
cooperation of CIM which contain certain branding, CIM designated
links, CIM technologies and/or content from the CIM Sites or any of
CIM's Related Entities to be provided by CIM in its sole discretion,
to which CIM or LWP directs End Users pursuant to this Agreement.
1.6 CIM TALK CITY AREAS. "CIM Talk City Areas" shall mean the CIM Talk
City Service, the CIM OnNow Service and the CIM Talk City Joint
Content Areas.
1.7 CIM TALK CITY JOINT CONTENT AREAS. "CIM Talk City Joint Content Areas"
shall mean the CIM and Talk City and CIM and OnNow co-branded content
areas within the Talk City Service, the CIM Talk City Service, the
OnNow Service and the CIM OnNow Service that may be jointly created by
LWP and CIM, and both of which shall be designated as "CIM Talk City
Joint Content Areas" by mutual agreement of LWP and CIM in accordance
with the procedures described in EXHIBIT B and to which End Users will
be able to gain access and be linked to from either the LWP Services
or the CIM Sites. The version of the CIM Talk City Joint Content Areas
viewed by a particular End User may depend on the way that End User
accesses such CIM Talk City Joint Content Area. The versions of the
CIM Talk City Joint Content Area accessed from CIM Sites shall be
known as "CIM-linked Talk City Joint Content Areas," while the
versions not accessed from CIM Sites shall be known as "General CIM
Talk City Joint Content Areas."
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1.8 CIM TALK CITY SERVICE. "CIM Talk City Service" shall mean the CIM and
Talk City co-branded pages and Internet services providing a version
of the Talk City Service, which End Users access from links on CIM
Sites and which shall be created, maintained and operated pursuant to
this Agreement.
The CIM Talk City Service (i) shall include the full range of Talk
City functionalities, including but not limited to Chats, Chat forums
and events, home pages/personal publishing tools, discussion boards,
instant messaging, bulletin boards and "buddy lists," (ii) shall
include the full range of Talk City content and services, (iii) in
some cases, by mutual agreement of CIM and LWP, may include additional
functions and content not available on the Talk City Service, (iv) may
exclude, as CIM may determine from time to time at its discretion,
functions and content that are available on the Talk City Service or
the OnNow Service and (v) shall have a customized presentation such
that CIM End Users see a co-branded display of the service and in some
cases, by mutual agreement of CIM and LWP, a customized display of the
service's elements, such as, but not limited to, promotional and
featured content or banner ads.
1.9 END USER. "End User" shall mean any person or entity which accesses
any online site or service. End Users accessing the CIM Talk City
Service, the CIM OnNow Service, the CIM Talk City Joint Content Areas,
or otherwise from CIM Sites shall be called "CIM End Users." End Users
accessing the Talk City Service or the OnNow Service, but not the CIM
versions of such services, and not from Other Partner Sites, shall be
called "LWP End Users". End Users accessing the Talk City Service or
the OnNow Service from Other Partner Sites will be called "Other
Partner End Users."
1.10 EXCESS INVENTORY. "Excess Inventory" shall mean Advertising Inventory
allocated to CIM or LWP as described in SECTION 4.3.2 ADVERTISING
INVENTORY SPLITS (i) that such party is unable to sell prior to the
day before the date on which such Advertising Inventory is first
scheduled to run or (ii) upon declaration or designation by the party
to which such Advertising Inventory was originally allocated pursuant
to SECTION 4.3.2 ADVERTISING INVENTORY SPLITS.
1.11 HEARST AGREEMENT. "Hearst Agreement" shall mean the Hearst-Talk City
Community Services Agreement, to be entered into by and between LWP
and Hearst Corporation ("Hearst"). "Hearst Area" shall mean the
Hearst/Talk City Area or Areas, as defined in the Hearst Agreement.
1.12 INVESTOR. "Investor" shall mean any company that has made or makes an
investment in any series of preferred stock of LWP.
1.13 LWP-BRANDED ONLINE STORES. "LWP-branded Online Stores" means the e-
commerce areas on the Talk City Service (as defined below) that sell
products branded with Talk City or OnNow marks, logos or brands or
branded with other LWP-owned marks, logos or brands.
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1.14 LWP GENERAL AREAS. "LWP General Areas" shall mean, collectively, any
and all "generic" areas within the LWP Services (as defined below)
that are not co-branded with CIM or any Other Partner (as defined
below) in a manner that is substantially similar to the co-branding
arrangement contemplated hereunder for the CIM versions of the LWP
Services (including, but not limited to, the CIM Talk City Service and
the CIM OnNow Service) and does not contain content from or supplied
by CIM.
1.15 LWP SERVICES. "LWP Services" means collectively, the Talk City
Service, the OnNow Service, future online sites operated by LWP and
any derivative or co-branded versions of all such services including
the CIM versions.
1.16 NBC AGREEMENT. "NBC Agreement" shall mean the NBC-Talk City Chat
Services Agreement, dated August 17, 1998, by and between LWP and NBC
Multimedia, Inc. ("NBC"). "NBC Area" shall mean the NBC/Talk City Area
or Areas, as defined in the NBC Agreement.
1.17 ONNOW SERVICE. "OnNow Service" shall mean the Web service owned and
operated by LWP under the brand name "OnNow" which provides a guide to
live events on the Internet and commercial online services.
1.18 OTHER PARTNERS. "Other Partners" (or individually, an "Other Partner")
shall mean other companies (which may include Investors) with whom LWP
has or forms site integration relationships or other relationships
relating to the development of content for the LWP Services or for the
distribution of End User traffic to or from the LWP Services. "Other
Traffic Partners" shall mean Other Partners that, in CIM's reasonable
judgment, provide or have the potential to provide substantial amounts
of End User traffic to the LWP Services and the CIM Talk City Areas.
"Other Content-only Partners" shall mean Other Partners, including but
not limited to NBC or Hearst, who have not agreed to split Advertising
Inventory with LWP or third parties, including CIM, with respect to
Other Partner Joint Content Areas (as defined in Section 4.3.1
hereof).
1.19 OTHER PARTNER SITES. "Other Partner Sites" shall mean the sites of
Other Partners from which End Users may access the Talk City Service
and the OnNow Service.
1.20 RELATED ENTITY. "Related Entity" shall mean any affiliate of LWP or
CIM, as the case may be. As used herein, an "affiliate" of a specified
entity means any other person or entity (i) that directly or
indirectly controls, is controlled by or is under common control with
such specified entity or (ii) of which the specified entity owns,
directly or indirectly at least 5% of the equity interests of such
other person or entity.
1.21 SPONSORSHIP. "Sponsorship" shall mean the payment by one or more
persons or entities, of all or substantially all of the advertising or
other costs associated with a specific event, program, forum or
service or series of such specific events, programs, forums or
services.
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1.22 TALK CITY SERVICE. "Talk City Service" shall mean the Web community
service owned and operated by LWP under the brand name "Talk City."
1.23 TERMS OF SERVICE OR CODE OF CONDUCT. The "Terms of Service or Code of
Conduct" shall mean any terms of service and code of conduct governing
Chats and content on any LWP Services which have been approved by CIM
for use with respect to the CIM Talk City Service areas and CIM Talk
City Joint Content Areas. A copy of the Terms of Service and Code of
Conduct, current as of the date hereof and which has been approved by
CIM, is attached hereto as EXHIBIT N.
1.24 TRANSACTION REVENUE. "Transaction Revenue" shall mean revenue earned,
received and collected on the transactional sale of goods and services
on online services.
"Partner Transaction Revenue" shall mean the commissions paid by
transaction service partners to LWP or CIM on Transaction Revenue
earned by those partners in the LWP Services or CIM Sites, as the case
may be. For LWP Services, such Transaction Revenue shall be called
"LWP Partner Transaction Revenue" and for CIM Sites, such Transaction
Revenue shall be called "CIM Partner Transaction Revenue."
"LWP Store Transaction Revenue" shall mean the gross Transaction
Revenue involving End Users of the LWP Services and earned by LWP in
the LWP-branded Online Stores on the Talk City Service, meaning LWP
recognizes, receives and collects the gross Transaction Revenue and
closes the transaction sale, and not meaning when an LWP transaction
partner is recognizing, receiving and collecting the gross Transaction
Revenue.
"CIM E-commerce Site Transaction Revenue" shall mean the Transaction
Revenue earned by CIM from CIM e-commerce sites for e-commerce
transactions involving End Users; provided, however, that revenue
splits may be paid by CIM for such CIM E-Commerce Site Transaction
Revenue for transactions involving End Users from the general versions
of the Talk City Service, the OnNow Service and Other Partner versions
of such LWP services, but not from the CIM Talk City Service, the CIM
OnNow Service or the CIM Talk City Joint Content Areas.
"E-commerce" transactions involving a LWP End User or a CIM End User
shall mean a commercial transaction in which an End User purchases
goods or services online, either directly from LWP or CIM, as the case
may be, or from a third party (with whom LWP or CIM, as the case may
be, have a revenue or fee sharing relationship or other similar
contractual relationship) by way of a hypertext or graphical link from
the LWP Services or a CIM Site, as the case may be.
2. CREATION, DEVELOPMENT, INTEGRATION AND OPERATION OF THE SERVICES.
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2.1 GENERAL CONCEPT. LWP with the collaboration of CIM will implement the
CIM Talk City Service and the CIM OnNow Service, which CIM will then
integrate into select
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CIM Sites. Select CIM Sites will be integrated by LWP and CIM into the
CIM Talk City Service and/or CIM OnNow Service and/or the Talk City
Service and/or the OnNow Service.
2.2 LWP OBLIGATIONS.
2.2.1 LWP SERVICE IMPLEMENTATION OF THE CO-BRANDED SERVICES. LWP
shall create, maintain and provide CIM and CIM-Related Entities
(and their affiliates and licensees) with the CIM Talk City
Service and CIM OnNow Service to be cross-integrated with the
CIM Sites listed in EXHIBIT A and with such other sites and
services as CIM may request to add to EXHIBIT A (which may
include Web sites of third parties for which CIM wishes to
license content, including the Talk City Service and the OnNow
Service), subject to (i) commercial reasonableness for LWP to
implement the requested service and its integration, (ii)
compliance with the LWP standards as described in EXHIBIT N (or
an updated version of such standards containing only such
modifications as may have been mutually agreed to by LWP and
CIM to the version attached as EXHIBIT N), and (iii) the
absence of any legal conflict with any other then-current
obligations of LWP and excluding sites of Direct LWP
Competitors as listed on EXHIBIT L. The CIM. Sites listed in
EXHIBIT A and such other sites and services as CIM may request
to add to Exhibit A (which may include Web sites of third
parties for which CIM wishes to license content, including the
Talk City Service and the OnNow Service), will be linked into
the Talk City Shops area of the Talk City Service and be
regularly and prominently promoted in appropriate shopping
venues on the Talk City Service and the CIM Talk City Service,
subject to each of (i) the revenue sharing clauses in SECTION
4.4 TRANSACTION REVENUE SHARING (ii) the most favored nations
status clauses in SECTION 2.2.2 LINKS AND ON SITE PROMOTIONAL
SPOTS and (iii) the exclusivity clauses in SECTION 2.4
EXCLUSIVITY.
Cross-integration of the services shall include, but not be
limited to: (i) cross-linking of each of the overall CIM Talk
City Service and CIM OnNow Service from and to the CIM Sites
and (ii) cross-linking of specific subsets of the CIM Talk City
Service and CIM OnNow Service to and from specific subsets of
CIM Sites, whether they be on the basis of function (for
example, chat, home pages, instant messages, message boards)
and/or content type (for example, College Community, Local
Community).
Customization of the CIM Talk City Service and the CIM OnNow
Service shall include but not be limited to (i) CIM co-
branding, (ii) links, promotional spots, calendar and event
listings, as may be reasonably requested by CIM and can be
implemented, in LWP's judgment, in a manner reasonably
consistent with the overall design strategy and implementation
of the Talk City and OnNow services, and (iii) exclusion of
links and promotional spots as may be reasonably requested by
CIM and reasonably implemented by LWP. LWP will list all CIM
Talk City Joint Content Areas and scheduled events relating to
the CIM Talk City Service, the CIM Talk City Joint Content
Areas and the CIM OnNow
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Service in the normal places such areas and events are listed
in Talk City, in both the CIM Talk City Service and the Talk
City Service and in the CIM OnNow Service and the OnNow
Service; provided, however, that Other Partners may choose to
exclude such listings on their versions of the Talk City
Service and/or the OnNow Service.
LWP will also provide hypertext and/or graphical links to the
CIM Sites listed in EXHIBIT A from the content-relevant areas
of the Talk City Service and the OnNow Service subject to their
being reasonably consistent with the overall design strategy
and implementation of the Talk City Service and the OnNow
Service. All such integration will be part of the general
implementation of the Talk City Service and the OnNow Service,
respectively; provided, however, that LWP reserves the right to
exclude from specific implementations of the Talk City Service
and/or the OnNow Service or subsets thereof, any and all
aspects of the CIM Sites, the CIM Talk City Service, the CIM
Talk City Joint Content Areas, and the CIM OnNow Service,
including but not limited to links and promotional spots, if a
LWP client (e.g., a sponsor or corporate services client) or
Other Partner specifically requests that these elements be
excluded from the implementation LWP is producing for that
client or Other Partner. The preceding proviso refers to the
general Talk City Service and OnNow Service and implementations
thereof for LWP's clients and Other Partners. It does not refer
to or allow exclusions from the CIM Talk City Service or the
CIM OnNow Service.
Examples of the general concept of the CIM Talk City Service
and the CIM OnNow Service, including the structure,
customization and cross-linking, are included in EXHIBIT C.
These examples are meant to illustrate such general concept,
and the specifics in these examples may or may not be actually
implemented.
LWP and CIM shall cooperate in good faith to develop such CIM
Talk City Joint Content Areas as the parties may mutually agree
to in accordance with the procedures described in EXHIBIT B.
CIM may request that new sites or services be designated as CIM
Talk City Joint Content Areas subject to (i) commercial
reasonableness for LWP to implement the requested site or
service and its integration, (ii) compliance with the LWP
standards as described in EXHIBIT N (or an updated version of
such standards containing only such modifications as may have
been mutually agreed to by LWP and CIM to the version attached
hereto as EXHIBIT N) and (iii) subject to not creating a legal
conflict with any other then-current obligations of LWP.
Examples of the general concept of the CIM Talk City Joint
Content Areas, including the structure, customization and
cross-linking, are included in EXHIBIT D. These examples are
meant to illustrate such general concept, and the specifics in
these examples may or may not be actually implemented.
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The CIM Talk City Service, the CIM OnNow Service and the CIM
Talk City Joint Content Areas shall be accessible by CIM End
Users from CIM Sites. The CIM Talk City Joint Content Areas
will be accessible to LWP End Users via the Talk City Service
or the OnNow Service. LWP will make the CIM Talk City Joint
Content Areas generally available to LWP End Users and Other
Partner End Users; provided, however, that LWP clients (e.g.
sponsors and/or corporate services clients) and Other Partners
may have the right to exclude the CIM Talk City Joint Content
Areas from specific implementations of the Talk City Service or
subsets thereof for those clients and Other Partners, in which
case the CIM Talk City Joint Content Areas might not be
displayed to the End Users of those implementations.
LWP will work with CIM to create all versions of the CIM Talk
City Service, the CIM Talk City Joint Content Areas and the CIM
OnNow Service using material to be supplied by CIM and CIM's
licensors, suppliers and agents. CIM and LWP agree that the
overall implementation and in particular the customization of
the CIM Talk City Service, the CIM OnNow Service and the CIM
Talk City Joint Content Areas, and each version thereof, will
be subject to CIM's final written approval of all aspects
thereof and any and all elements contained therein.
LWP shall retain total control of the main Talk City Service
and OnNow Service and its presentation to LWP End Users and to
Other Partner End Users.
2.2.2 LINKS AND ON SITE PROMOTIONAL SPOTS. LWP agrees to provide CIM-
branded hypertext and/or graphical links from the top levels on
the home page of both the Talk City Service and the OnNow
Service to the CIM Sites listed in EXHIBIT A. The size and
placement of these links which shall be mutually agreed upon by
the parties with the understanding that the final result must
be consistent with the then current overall Talk City Service
or OnNow Service design strategy and implementation and, in any
case, LWP will have final decision and approval on the
specifics. If multiple CIM Sites are to be linked, this may be
done via a pull down menu, by a link leading to a page with a
list of links or in any other manner that may be agreed upon by
the parties. An example of the general concept of the linking
to CIM Sites at the top level of the Talk City Service is
provided in EXHIBIT C. This example is meant to illustrate such
general concept, and the specifics in these examples may or may
not be actually implemented.
Additional specific links to the CIM Sites in EXHIBIT A, if
any, to be provided in the Talk City Service, OnNow Service,
CIM Talk City Service, CIM Talk City Joint Content Areas and/or
CIM OnNow Service are listed in EXHIBIT E. All such links will
be two-way, meaning if there is a link from the LWP Service to
the CIM Site, there will also be a comparable link back from
the CIM Site to the corresponding CIM Talk City Service or CIM
OnNow Service.
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In general, LWP shall grant to CIM most favored nations status
with Investors and preferential treatment compared to Other
Partners that are not Investors with regard to the placement,
positioning and size of links, the content for the Talk City
Service and/or the OnNow Service supplied by CIM, such
Investors and/or such Other Partners that are not Investors,
and also for the promotional treatment of the CIM Talk City
Joint Content Areas; provided, however, that it is understood
that this most favored nations status applies to links to CIM,
Investor and/or Other Partner owned and operated sites and
services and content from CIM, such Investors and/or such Other
Partners in general, and LWP may provide preferential
promotional treatment to specific non-CIM content and events
that in LWP's good faith judgment is of greater overall value
to End Users, advertisers or the LWP Services.
2.2.3 SYSTEM INFRASTRUCTURE AND SOFTWARE. LWP will provide all
necessary facilities, servers, connectivity and related
equipment and technology required to operate and host the CIM
Talk City Areas, including any bulletin boards, "buddy lists,"
instant messaging, chat events, home pages, event guides or
other Talk City and OnNow services, on LWP's Internet servers
and will ensure that such resources will support any LWP
services technology which CIM reasonably requests that LWP use
or support in connection with the CIM Talk City Service, the
CIM Talk City Joint Content Areas and/or the CIM OnNow Service
during the term of this Agreement. LWP agrees that, at all
times during the term of this Agreement, the system resources
it provides for the CIM Talk City Areas shall be sufficient to
support and manage all simultaneous End Users who wish to use
said services, at any time, within commonly accepted industry
expectations for performance.
LWP shall provide a means for End Users to download the
software required, if any, at no cost, for their general
participation in the CIM Talk City Service and the CIM OnNow
Service; provided, however, that if special LWP or third party
commercial software is required for any specific special or
premium service participation, then the End Users may be
required to pay standard fees, if any, for such software and/or
participation. Nothing in this Agreement shall be construed as
a license to CIM of any rights in or to such software. LWP
shall operate and maintain the Talk City Service, the CIM Talk
City Service, the OnNow Service and the CIM OnNow Service in a
high-quality manner which will be at least consistent with
LWP's then-current Terms of Service or Code of Conduct.
LWP shall bear all the costs of providing the general CIM Talk
City Service, the CIM Talk City Joint Content Areas, the CIM
OnNow Service and other services which it is obligated to
provide hereunder; provided, however, if the two parties
mutually agree otherwise for LWP to provide additional services
at a charge to CIM, then CIM will pay such charges.
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2.2.4 CHAT HOSTS AND COMMUNITY LEADERS. LWP shall be primarily
responsible for recruiting, engaging, training and compensating
all paid or volunteer hosts, personalities, content area
experts, producers and/or standards advisors for the chats and
community leadership roles in the CIM Talk City Service. CIM
may, at its sole discretion, provide personalities, hosts and
other content area experts for Chats taking place within the
CIM Talk City Service or information for display in the CIM
OnNow Areas.
Notwithstanding the foregoing, LWP shall provide, at no
additional cost to CIM, LWP's standard monitoring oversight
services for all chats in the CIM Talk City Service through and
by LWP's City Conference Crew ("CCCs") and LWP's Community
Standard Advisors ("CSAs"), and other such resources consistent
with LWP's approach to the overall Talk City Service.
LWP shall provide other chat hosting services for the CIM Talk
City Service (including without limitation assistance in
recruiting, engaging and basic training of qualified personnel
as chat hosts on an ongoing basis, within the standard LWP
practices and approaches), as may be reasonably requested by
CIM and subject to (i) commercial reasonableness for LWP to do
so or (ii) CIM paying the incremental cost of LWP to provide
such services.
LWP will not be obligated to provide moderation for any
bulletin boards or other similar services which CIM chooses to
include within the CIM Talk City Service, but CIM may choose to
supervise such bulletin boards or similar services itself if
and when it wishes and if it does so, will do so under the
general supervision, rules and guidelines of the Talk City
community management team and the LWP Code of Conduct.
2.2.5 TRANSCRIPTS. LWP agrees to supply CIM with text-based
transcripts of any special event Chats or other special events
on the Talk City Services for posting on the CIM Sites.
2.2.6 TECHNOLOGY. LWP and CIM agree to generally work together to
utilize and showcase each other's technologies in the
implementation of the Talk City Service, the OnNow Service, the
CIM Talk City Service and the CIM OnNow Service subject to the
commercial reasonableness for each of the respective parties.
Technologies that the parties specifically agree to utilize and
showcase and any specific requirements related to that use are
listed in EXHIBIT F; provided, however, that for the general
Talk City Service and the general OnNow Service, if a LWP
client (e.g., a sponsor or corporate services client) or an
Other Partner specifically requests that the utilized or
showcased CIM technologies be excluded from the specific
service implementations (or subsets thereof) that LWP is
creating for those clients or Other Partners, then LWP is
allowed to so exclude said technologies from those
implementations.
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2.2.7 ACCESS TO LWP BOOKING AGENT. LWP shall provide CIM with access
to LWP's booking agents to assist CIM in booking Chat guests
for Chat events or programs on and in the CIM Talk City
Service, with the understanding that such access is subject to
the terms and conditions of LWP's agreements with those agents
and that CIM shall bear any incremental costs associated with
CIM-specific activities.
2.2.8 ADDITIONAL LWP OBLIGATIONS. Additional LWP obligations relating
to service or product implementation, including but not limited
to the development and updating of instant messaging
capabilities, are listed in EXHIBIT G.
2.3 CIM OBLIGATIONS.
2.3.1 CIM SERVICE IMPLEMENTATION OF THE CO-BRANDED SERVICES. CIM will
collaborate, provide input and appropriate materials and
otherwise cooperate with LWP in the creation, ongoing
development, management and promotion of the CIM Talk City
Service, the CIM Talk City Joint Content Areas and the CIM
OnNow Service.
CIM will integrate the CIM Talk City Service as the featured
community service (themed communities, chat, home pages, etc.)
and the CIM OnNow Service as the featured online events guide
in the CIM Sites listed in EXHIBIT A. Examples of the general
concept of this are included in EXHIBIT H. These examples are
meant to illustrate such general concept, and the specifics in
these examples may or may not be actually implemented.
2.3.2 LINKS AND ON SITE PROMOTIONAL SPOTS. CIM agrees to provide, for
the term hereof, a Talk City-branded hypertext and/or graphical
link and an OnNow-branded hypertext and/or graphical link to
the CIM-co-branded versions of those services (the CIM Talk
City Service and the CIM OnNow Service, respectively) on the
top primary Home Page of the CIM Sites listed in EXHIBIT A and
in other appropriate areas in those sites. The size and
placement of these links shall be mutually agreed upon by the
parties with the understanding that the final result must be
consistent with the then current overall CIM design strategy
and implementation and, in any case, CIM will have final
decision and approval on the specifics. Additional specific
links required on the part of CIM are listed in EXHIBIT I. In
general, these links correspond to the links from LWP Services
as described in SECTION 2.2.2 LINKS AND ON SITE PROMOTIONAL
SPOTS and EXHIBIT E.
In general, CIM shall grant to LWP most favored nations status
with other CIM content and distribution partners with regard to
the placement, positioning and size of links from the CIM Sites
to the CIM Talk City Service and CIM OnNow Service; provided,
however, that it is understood that this most favored nations
status applies to LWP links in general, meaning that CIM may
provide preferential promotional treatment to specific content
or services of CIM content
12
and distribution partners that in CIM's good faith judgment are
or greater overall value to End Users, advertisers or the CIM
Sites.
2.3.3 ADDITIONAL CIM OBLIGATIONS. Additional CIM obligations relating
to service or product implementation, if any are listed in and
attached hereto as EXHIBIT J.
2.4 EXCLUSIVITY.
2.4.1 GENERAL CONCEPT. CIM and LWP may agree to feature any or all of
each other's sites or services on an exclusive basis on a site
or service specific basis, meaning that they will not feature
any other substantially similar third party site or service.
Sites or services that will be featured exclusively will be
listed in EXHIBIT K.
2.4.2 LWP EXCLUSIVITY. For the CIM Sites listed in EXHIBIT K (which
must be the same list or a subset of the list of CIM Sites in
EXHIBIT A) and for such other CIM Sites as may from time to
time be added to EXHIBIT A and EXHIBIT K by mutual consent of
the two parties, LWP will provide Talk City Service integration
and OnNow Service integration on an exclusive basis, meaning
LWP will not develop and manage a co-branded version of the
Talk City Service and/or the OnNow Service for any other third
party Direct CIM Competitors to those CIM Sites listed in
EXHIBIT K, including the specific Direct CIM Competitors listed
in EXHIBIT L or as may be added from time to time to EXHIBIT L
by mutual agreement of the two parties, with the understanding
that such agreement will not be unreasonably withheld. It is
understood that "Direct CIM Competitor" in this case refers to
Internet sites specifically focused on the same locality or
subject matter as the CIM Sites listed in EXHIBIT K and not to
a larger aggregation or content site that among other things
includes such competitive content outside of its primary focus.
This exclusivity provision is meant to apply to work with other
third party companies and does not preclude LWP from any type
of content or function implementation for its services that is
developed and managed internally by LWP; provided, however,
that the exclusivity provision does preclude LWP from operating
a local content destination or local content based portal
aggregation site, meaning sites that focus on local content
with professional editorial focused on local content and/or
local content aggregation as the main point of the site. It is
understood that this does not refer to local oriented community
online services such as chats, discussion boards and home
pages. It is further understood that this exclusivity provision
does not apply to member generated content such as member chat
rooms and discussion boards, Chat @ Talk City Rooms or Talk
City Home Pages. This exclusivity provision shall not preclude
LWP from providing Talk City Service integration and/or OnNow
Service integration to any other major Investor in LWP, to that
major Investor's affiliates and subsidiaries or to any
companies that said major Investor has a ten
13
percent (10%) or greater ownership position in, or any
additional exceptions specifically listed in EXHIBIT K.
2.4.2 CIM EXCLUSIVITY. For the CIM Sites listed in EXHIBIT K (which
must be the same list as or a subset of the list of CIM Sites
in EXHIBIT A), and for such other CIM Sites as may from time to
time be added to EXHIBIT A and EXHIBIT K by mutual consent of
the two parties, CIM will integrate and feature on an exclusive
basis the community services that are provided to it by LWP
through its CIM Talk City Service and its CIM OnNow Service,
meaning CIM will not integrate any other third party community
services into those CIM Sites listed in EXHIBIT K that are
Direct LWP Competitors to the Talk City Service and the OnNow
Service, including the specific Direct LWP Competitors listed
in EXHIBIT L or as may be added from time to time to EXHIBIT L
by mutual agreement of the two parties, with the understanding
that such agreement will not be unreasonably withheld;
provided, however, that it is understood that "Direct LWP
Competitor" in this case refers to Internet sites specifically
focused on the same subject matter as the Talk City Service
and/or the OnNow Service, not to a larger aggregation or
content site that among other things includes such competitive
content outside of its primary focus. For example, if CIM is
integrating and featuring Disney Blast or Excite Search
services which happen to include as a secondary element a Chat
function and/or event listing service, this would not be
considered a Direct LWP Competitor to the Talk City Service or
the OnNow Service; provided, however, that if specific sites or
specific subsets of sites are listed in EXHIBIT L as Direct LWP
Competitors, then those sites or subsets of sites will be
considered Direct LWP Competitors.
The exclusivity provision is meant to apply to work with other
third party companies and does not preclude CIM from any type
of content or function implementation for its services that is
developed and managed internally by CIM.
The two parties may from time to time, by mutual agreement, add
or subtract sites from EXHIBIT K and/or EXHIBIT L.
2.5 FUTURE SERVICE INTEGRATION.
2.5.1 GENERAL CONCEPT. LWP agrees to support future CIM services with
Talk City and OnNow integration subject to the reasonableness
of doing so and CIM agrees to make a good faith effort to
consider integrating future LWP services in and onto CIM Sites,
subject to the reasonableness of doing so.
2.5.2 LWP INTEGRATION WITH FUTURE CIM SITES. LWP agrees to provide
the CIM Talk City Service, the CIM Talk City Joint Content
Areas and the CIM OnNow Service to be integrated with any CIM
Sites that will be added to EXHIBIT A in the future (which may
include Web sites of third parties for which CIM wishes to
license content, including the Talk City Service and/or the
OnNow Service),
14
under the terms of this Agreement and subject to (i) the
commercial reasonableness for LWP to do so, (ii) cross-links
with the future CIM Sites would be implemented in a manner
consistent with the terms of this Agreement, (iii) compliance
with the LiveWorld standards as described in EXHIBIT N hereof
(or an updated version of such standards containing any such
modifications as may have been mutually agreed to by LWP and
CIM to the version attached as EXHIBIT N) and (iv) any then-
current legal conflicts that might arise due to such
implementation.
2.5.3 CIM INTEGRATION OF FUTURE LWP SERVICES. CIM agrees to a make a
good faith effort to consider integrating future LWP services
into CIM's future online services, subject to (i) the
commercial reasonableness for CIM to do so, (ii) cross-links
with the future LWP services would be implemented consistent
with the terms of this Agreement, (iii) compliance of the new
LWP services with CIM's then current standards of services as
described in EXHIBIT N hereto (or an updated version of such
standards containing only such modifications as may have been
mutually agreed to by LWP and CIM to the version attached as
EXHIBIT N) and (iv) any then current legal conflicts that might
arise due to the implementation; provided, however, that CIM
retains the right, in its sole discretion, not to integrate LWP
services in future CIM services and/or to integrate other non-
LWP services.
2.5.4 NOTIFICATION AND ACKNOWLEDGMENT. Such future services will need
to be added to EXHIBITS A and EXHIBIT K, as appropriate, by CIM
and LWP upon notification and mutual acknowledgment of these
new sites and services and the mutual intent to integrate them.
2.6 TIMELINE.
LWP and CIM shall cooperate in good faith and use commercially
reasonable efforts to launch the CIM Talk City Service, the CIM Talk
City Joint Content Areas and the CIM OnNow Service as soon as feasible
after the date hereof, subject to the commercial availability of the
CIM Sites and in the most technically and commercially expedient
fashion, based on relevant engineering considerations and giving
effect to CIM's preferences in terms of roll-out of particular areas
on the Talk City Service and the OnNow Service.
See EXHIBIT M for a specific timeline.
2.7 APPROVAL AND REMOVAL OF CONTENT.
2.7.1 APPROVAL. LWP acknowledges that all material created or used by
LWP pursuant to the terms hereof, including in conjunction with
the CIM Specific Areas, will be subject to CIM's prior written
approval where practical and feasible. In addition, as long as
it complies with the terms of SECTION 4.3.2
15
LWP SALES RIGHTS, RESPONSIBILITIES AND GUIDELINES, LWP will be
required to obtain CIM's prior written approval of any
Advertising or promotions which appear in any CIM Specific
Areas if feasible and practicable, provided that CIM will have
the right to require LWP to remove any such Advertising or
promotions appearing in the CIM Specific Areas to which CIM
reasonably objects. Any request for such approvals made by LWP
may be approved or rejected by CIM in its sole discretion. In
the case of Advertising or promotions to be placed in the CIM
Specific Areas which CIM permits LWP to sell and for which LWP
requests approval, CIM must make its decision within two (2)
business days of CIM's receipt of the request from LWP, and if
CIM neither approves nor rejects such Advertising or promotion
within such time period, then LWP shall have the right to place
it within the CIM Talk City Areas until such time as CIM
affirmatively requests that LWP remove it therefrom.
2.7.2 REMOVAL. CIM shall have the right to remove or cause to be
removed, from the CIM Talk City Areas any End User information,
statements or other material or content that CIM, at its sole
discretion, chooses to remove. CIM shall also have the right to
de-link or otherwise remove links from the CIM Sites, the CIM
Talk City Service, the CIM Talk City Joint Content Areas and/or
the CIM OnNow Services, to any content, Chats or web pages at
CIM's sole discretion.
In addition, LWP shall have the right to remove, or cause to be
removed, from the CIM Talk City Areas any information,
statements or other material which is not provided by CIM or
CIM's licensors, suppliers or agents, if such material is in
violation of any terms of LWP's then current Terms of Service
or Code of Conduct (current version attached hereto as EXHIBIT
N and approved herewith and subject to updates as may be
mutually agreed upon by LWP and CIM) which has been approved by
CIM for use in connection with the CIM Talk City Areas.
2.8 REGISTRATION, COLLECTION, REPORTING, OWNERSHIP, USE AND MINING OF END
USER DATA.
2.8.1 REGISTRATION. In general, all End Users accessing the CIM Talk
City Areas as well as the End Users coming from the CIM Sites
who access other areas of the Talk City Service or the On Now
Service will be presented with the opportunity to register
their personal chat nickname for use in chatting, message
boards or other non-premium Talk City Services. However, at all
times during the term of this Agreement, LWP agrees that all
End Users of the CIM Talk City Areas will have the right to use
such services at no cost as a guest user who will not be
required to complete a registration process, provided that CIM
acknowledges that any such guest users will not be permitted to
participate in Talk City Services using any nicknames reserved
by End Users of the Talk City Service who have completed the
required registration process. LWP agrees that CIM shall have
the reasonable right to customize, if technically feasible, the
registration process, including the look and feel thereof, for
any End Users of the
00
XXX Xxxx Xxxx Xxxxx. In addition, if LWP or CIM determine that
End Users should provide personal information in connection
with any of the registration processes for the CIM Talk City
Areas described above, then the parties must first mutually
agree that such registration process is necessary and then
mutually agree upon all aspects thereof.
2.8.2 COLLECTION. LWP shall electronically tag and track each End
User as they access and use the CIM Talk City Areas and supply
CIM with any aggregate End User data, traffic patterns, and
user feedback related to the CIM Talk City Areas, including any
use of Talk City Services by End Users coming from CIM Sites,
which LWP shall collect on a monthly basis. CIM may make
reasonable requests from time to time for LWP to provide it
with certain data regarding the CIM Talk City Areas collected
from individual End Users, subject to LWP's ability to receive
such data.
In addition, subject to industry standards on privacy and data
use, LWP will make reasonable commercial efforts when it
registers End Users and otherwise collects End User data to
specifically delineate End Users registering via CIM Talk City
Areas and to communicate to such End Users that their
individual data will be available to both Talk City (and/or
OnNow and/or LWP) and also to CIM. This CIM End User data will
be jointly owned by LWP and CIM and each of CIM and LWP may use
such data for the purposes of improving their services, for
targeting advertising, for communications to the CIM End Users,
in the aggregate for reporting information about their services
and for any other purpose commonly available to the owners of
such data, subject to the Privacy, Information and
Communication policies attached hereto as EXHIBIT O.
2.8.3 REPORTING. LWP shall provide CIM, on a monthly basis, with
reports which provide CIM with information collected by LWP
during the past month in connection with any of the
registration processes described in SECTION 2.8.1 REGISTRATION
above or from End Users of the CIM Talk City Areas who come
from the CIM Sites who elect to register after accessing any
Talk City Service outside of the CIM Talk City Areas (the
"Registration Information"). Subject to the terms OF SECTION
4.4 TRANSACTION REVENUE SHARING, CIM acknowledges that LWP may
offer, in LWP's sole discretion, in the future, certain premium
add-ons and services related to the Talk City Services;
provided, however, that if such premium add-ons and services
are offered or made available to End Users within the CIM Talk
City Areas, then such offers and promotions thereof will be
subject to the approval of CIM and if so approved will be no
more costly to the End Users coming from the CIM Talk City
Areas than to users coming from other areas of the Talk City
Service.
LWP shall also provide, on a monthly basis, CIM with reports on
individual CIM End User data regarding the CIM Talk City Areas,
subject to LWP's ability to receive data and disclosure
permissions from the CIM End-Users. LWP shall
17
also make available to CIM, on a monthly basis or as CIM may
reasonably request from time to time, all other aggregate Talk
City and OnNow End User data, including without limitation data
made available to LWP through its relationships with its Other
Partners and Investors, subject to CIM and/or LWP mutually
agreeing with those Other Partners and Investors to share such
data with CIM and providing that such sharing does not violate
the Privacy and Information Policies in EXHIBIT O. CIM will use
this data on a confidential basis, but may report it in the
aggregate as part of overall reporting on CIM's services.
Additionally, on request, LWP will supply CIM with any
aggregate End User data, traffic patterns and user feedback
related to the CIM Talk City Areas which LWP shall collect on a
monthly basis. LWP shall not make data or information on a CIM-
specific basis available to any other person or entity and
shall otherwise keep all such data and information confidential
and treat it as "Confidential Information" subject to the
provisions of SECTION 9.9 CONFIDENTIALITY of this Agreement.
Finally, LWP will also make available to CIM LWP's data
analysis of the aggregate Talk City Service and aggregate OnNow
Service data and LWP's data analysis of the CIM Talk City
Areas.
In the event of the termination of this Agreement, LWP will
provide to CIM an electronic copy of the collected and archived
data and data analysis on registered End Users of the CIM Talk
City Areas as of the date of termination of this Agreement.
All data to which CIM is entitled to be furnished hereunder
shall be in formats and in accordance with such technical
specifications as may be reasonably requested by CIM and that
is practical for LWP to provide. LWP will provide such data in
the formats and according to the specifications listed in and
attached hereto as EXHIBIT P.
2.8.4 OWNERSHIP AND USE OF END USER INFORMATION. LWP and CIM shall
jointly own all Registration Information and other information
collected from End Users in connection with the CIM Talk City
Areas. Subject to the attached LWP Privacy and User Information
Policies (see EXHIBIT O for LWP's Privacy and User Information
Policies, current as of the date of this Agreement), and in any
case, all End Users shall be informed, via the LWP Privacy and
User Information Policies or otherwise, before registering or
submitting personal data and information, on how Registration
Information or other information may be used by either CIM or
LWP, and will be provided with the option of declining to
receive any or all of the mailings or other services offered by
either CIM or LWP. Both parties shall be permitted to use such
Registration Information and other information for marketing
and other purposes so approved through written
18
notice by each party; provided, however, that no individual End
User data shall be released to any third party without the
express advance permission of such End User, and neither party
shall be allowed to use End User data for direct marketing or
direct solicitation purposes without the prior written consent
of the other party.
2.9 USE OF TRADEMARKS. LWP and CIM each acknowledge and agree that: (i)
each party's trade names and trademarks are and shall remain the sole
property of such owning party; (ii) nothing in this Agreement shall
confer any right of ownership in the other party's trade names and
trademarks; and (iii) each party may use the other's appropriate trade
names and trademarks within their online services and within their
sales and marketing material subject to prior ongoing approval by the
party that owns the trade names and trademarks involved and otherwise
in accordance with SECTION 3 PROMOTION AND MARKETING below.
2.10 OWNERSHIP OF CONTENT. Except for material previously owned by LWP and
provided for use hereunder and the material described IN SECTION 2.8.4
OWNERSHIP AND USE OF END USER INFORMATION, CIM and its licensees,
suppliers, agents and Related Entities, as appropriate, will own all
rights to the material in the CIM Talk City Service, the CIM OnNow
Service and the CIM Talk City Joint Content Areas that is supplied or
created by CIM or such licensees, suppliers, agents and Related
Entities for use therein.
3. PROMOTION AND MARKETING.
------------------------
3.1 GENERAL CONCEPT. CIM and LWP agree to co-market the CIM Talk City
Areas and the relationship between the companies with the goal of
growing these services and the two companies' other respective
services and with marketing program specifics to be agreed on mutually
by the two companies. LWP agrees to provide CIM and its designees with
a number of advertising impressions, in accordance with the terms and
conditions detailed in SECTION 3.6 PROMOTIONAL CONSIDERATION below.
19
3.2 USE OF TRADEMARKS, LOGOS AND MATERIAL.
3.2.1 CIM USE OF LWP MATERIAL. CIM may use the Talk City, OnNow and
LiveWorld trademarks and logos, any depictions of the actual
CIM Talk City Areas or material created therefor pursuant
hereto, as well as any other material, names, logos and
trademarks of LWP that LWP chooses to make available to CIM at
its sole discretion (the "LWP Material") for the specific
purposes described in this Agreement and subject to the terms
hereof, in any marketing and promotional activities in which
CIM may choose to engage; provided, however, that such use
shall be made in accordance with any guidelines regarding such
LWP Material provided by LWP, including any amended guidelines
and any and all LWP guidelines regarding the use of LWP
intellectual property, talents' names, likenesses and images as
well as any other requirement related thereto.
CIM will provide LWP with samples of marketing literature and
material that include any LWP Material for purposes of
determining compliance with LWP's guidelines prior to any use
thereof.
3.2.2 LWP USE OF CIM MATERIAL. LWP may use any material supplied to
LWP by CIM, including any CIM names, logos and trademarks
included therein (the "CIM Material") for the specific purposes
described herein and subject to the terms hereof. In addition,
LWP may use CIM Material in any marketing and promotional
activities in which LWP may choose to engage; provided,
however, that such use shall be made in accordance with any
guidelines regarding such CIM Material provided by CIM,
including any amended guidelines and any and all CIM guidelines
regarding the use of CIM intellectual property, talents' names,
likenesses and images as well as any other requirement related
thereto.
LWP will provide CIM with samples of marketing literature and
material that include any CIM Material for purposes of
determining compliance with CIM's guidelines prior to any use
thereof.
3.3 STATEMENTS. Neither party will make any statements to the effect, or
which imply, that any other party "certifies," endorses or guarantees
the performance of any service or product of such party. Except as
otherwise provided in a separate agreement between the parties,
neither party will use or display any name, trademark or logo of the
other party hereto in any other way or after the termination of this
Agreement.
3.4 PRESS RELEASES. CIM and LWP agree to issue (a) mutually agreeable
joint press release(s) about this Agreement and the relationship
between them and for the launch of the CIM Talk City Areas and for any
other events and topics of public interest about which the parties
mutually agree. Notwithstanding the foregoing but subject to the terms
of SECTION 9.9 CONFIDENTIALITY, either party may issue press releases
that are required by law or regulation without the consent of the
other party.
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3.5 CO-MARKETING. CIM and LWP each shall use other commercially reasonable
efforts to direct End-Users toward the CIM Talk City Areas and shall
cooperate in good faith to explore other commercially reasonable
opportunities to market or co-market their services together in online
and offline media; provided, however, that the parties acknowledge
that CIM has not guaranteed that any such cross-marketing or promotion
will actually occur.
3.6 PROMOTIONAL CONSIDERATION FOR CIM. In consideration of this Agreement,
in the Initial Term and in each of any Renewal Terms, LWP shall
provide to CIM, or any other party designated by CIM which is not an
online chat service provider or Direct LWP Competitor as listed hereto
on EXHIBIT L, a total of at least [*] ([*]) barter advertising
impressions (per year) for use in promoting the CIM Sites or any Web
site(s) or other products or services of CIM or its designees which do
not compete with the Talk City Service. In the event that the
otherwise available advertising banner inventory in the Talk City
Service becomes more than [*] percent ([*]%) sold out, LWP shall have
the right to request in writing that CIM forgo a portion of the
inventory described above, and CIM shall not unreasonably refuse such
request; provided, however, that if LWP sells such inventory, then
such sales shall be subject to the terms of SECTION 4.2.1 ADVERTISING
REVENUE ALLOCATIONS. If LWP is unable to sell all of such inventory,
then each of the parties shall have the right to use [*] percent
([*]%) of such unsold Advertising Inventory to advertise any of such
party's Web site(s) or other products or services or its designees
which are not Direct CIM Competitors or Direct LWP Competitors.
LWP will provide a prominent CIM-approved and CIM-branded graphical
link to the CIM Talk City Areas placed above the fold on the home page
of both the Talk City Services and the OnNow Services at all times
during the term of this Agreement. LWP will also include Chat Room
Chat events and features in the Talk City Service or OnNow Services'
calendar of events, subject to CIM approval. LWP will include the
links to and promotion of areas within the CIM Talk City Areas related
to the CIM Sites described in EXHIBIT A hereto. In return, LWP agrees
to provide an above the fold graphical link to the CIM Talk City Areas
from the home page of the LWP Services, the size and placement of
which shall be mutually agreed upon by the parties.
4. ADVERTISING INVENTORY AND REVENUE ALLOCATIONS, SALES, AND OTHER FINANCIAL
-------------------------------------------------------------------------
TERMS.
-----
4.1 GENERAL CONCEPT. CIM and LWP shall both have rights to sell
Advertising Inventory on the CIM Talk City Areas. The two companies
will share in the revenue from such sales by either company.
4.2 ADVERTISING SALES AND ADVERTISING MANAGEMENT RESPONSIBILITIES.
4.2.1 GENERAL. Both LWP and CIM will be able to sell Advertising
for the CIM Talk City Areas.
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* Certain information on this page has been
omitted and filed separately with the Commission.
Confidental treatment has been requested with
respect to the omitted portions.
4.2.2 CIM SALES RIGHTS, RESPONSIBILITIES AND GUIDELINES: CIM will
have the following rights to sell Advertising for CIM Talk
City Areas.
(i) CIM will make a good faith effort to the sell the
Advertising Inventory made available to it hereunder.
(ii) For Advertising that CIM sells, it will be
responsible for the account management, billing and
collections from the client and for payment of
revenue splits to LWP.
(iii) CIM will sell the Advertising Inventory it is
allocated from the CIM Talk City Areas packaged into
CIM site packages and not specifically as Talk City
or OnNow.
(iv) CIM controls and sets pricing for its sales of
Advertising Inventory and will follow the CIM
advertising sales guidelines attached in EXHIBIT Q.
(v) CIM will work within the then-current LWP
advertisement standards, the current version of which
is attached hereto in EXHIBIT Q, then-current
advertising technical standards, inventory, and other
customary and reasonable ad/ad process guidelines. If
CIM is using LWP's ad management services, then CIM
will also work within such customary and reasonable
standard insertion order, ad scheduling and ad
management systems, process and policies as may be
established by LWP.
(vi) CIM agrees to work with LWP to develop a methodology
for coordinating and selling advertising for the CIM
Talk City Areas so that they can avoid confusion in
the marketplace and will work together and coordinate
advertising placements in order to avoid conflicts
between advertising displayed on the CIM Talk City
Areas.
(vii) Media Personalities. If CIM is selling and running
-------------------
ads on the CIM Talk City Areas in conjunction with
the appearance or promotion of a media personality on
the service, then CIM will not make any statements to
the effect, or which imply, that any such media
personality "certifies," endorses or guarantees the
performance of any service or product of such party
unless CIM has otherwise arranged to do so directly
with the media personality or that media
personality's representatives.
(viii) CIM agrees that the advertising it sells and places
in the CIM Talk City Service and the CIM OnNow
Service will not include advertising for any
competitor to any business of LWP of which LWP has
provided CIM notice in EXHIBIT R, attached hereto.
22
(ix) CIM will remove from the CIM Talk Areas any
Advertising that LWP reasonably requests be removed
on the basis that such Advertising violates the then-
current LWP advertising standards, a current copy of
which is attached hereto as EXHIBIT Q.
4.2.3 LWP SALES RIGHTS, RESPONSIBILITIES AND GUIDELINES. LWP will
have the following rights to sell Advertising for the CIM
Talk City Areas.
(i) LWP will make a good faith effort to the sell the
Advertising Inventory made available to it hereunder,
and shall use all commercially reasonable efforts to
require each of its Other Partners to make good faith
efforts to sell any Advertising Inventory allocated
to such Other Partner under SECTIONS 4.3.2(III) AND
4.3.2(IV) of this Agreement.
(ii) For Advertising Inventory that LWP sells, it will be
responsible for the account management, billing and
collections from the client and for payment of
revenue splits to CIM.
(iii) LWP will sell the Advertising Inventory it is
allocated from the CIM Talk City Areas packaged into
Talk City and OnNow site packages and not
specifically as CIM Sites.
(iv) LWP shall control and set pricing for its sales of
Advertising Inventory, and will follow the LWP
advertising sales guidelines attached hereto as
EXHIBIT Q.
(v) LWP will remove from the CIM Talk City Areas any
Advertising that CIM reasonably requests be removed
on the basis of such Advertising's violations of then
current CIM advertising standards (a copy of the
current CIM advertising standards is attached hereto
as EXHIBIT Q).
(vi) LWP agrees to work with CIM to develop a methodology
for coordinating and selling advertising for the CIM
Talk City Areas so that they can avoid confusion in
the marketplace and will work together and coordinate
advertising placements in order to avoid conflicts
between advertising displayed on the CIM Talk City
Service, CIM Talk City Joint Content Areas and the
CIM OnNow Service.
(vii) Media Personalities. If LWP is selling and running
-------------------
ads on the CIM Talk City Areas in conjunction with
the appearance or promotion of a media personality on
the service, then LWP will not make any statements to
the effect, or which imply, that any such media
personality "certifies," endorses or guarantees the
performance of any service or product of such party
unless LWP has otherwise arranged to do so directly
with the media personality or that media
personality's representatives.
23
(viii) LWP agrees that the Advertising it sells and places
in the CIM Talk City Areas will not include
Advertising for any competitor to any business of CIM
of which CIM has provided LWP notice in EXHIBIT R,
attached hereto.
4.3 ADVERTISING INVENTORY SPLITS, ADVERTISING REVENUE SHARING AND
TREATMENT OF EXCESS INVENTORY.
4.3.1 GENERAL CONCEPT. The two parties agree to split Advertising
Inventory and share Advertising Revenue sold by either party
on the CIM Talk Areas and, where applicable, the Talk City
Service, the OnNow Service or areas within the Talk City
Service or OnNow service containing content from Other
Partners (the "Other Partner Joint Content Areas") and to
share revenue from Excess Inventory as detailed herein. The
two parties agree to manage the Advertising Inventory to
facilitate coordination of the Advertising sales and revenue
sharing.
4.3.2 ADVERTISING INVENTORY SPLITS
GENERAL CONCEPT. Advertising Inventory shall be allocated
among CIM, LWP and Other Partners to recognize, reward and
provide incentives for contributions by such parties of
content, End User traffic and online infrastructure. The
terms and conditions contained in this SECTION 4.3.2
ADVERTISING INVENTORY SPLITS shall not apply to any NBC
Areas, Hearst Areas or Other Partner Joint Content Areas
unless NBC, Hearst and/or such Other Partners agree to adopt
or substantially adopt such terms and conditions.
Advertising Inventory shall be allocated to CIM, LWP and
Other Partners as follows:
(i) CIM End Users to the CIM-linked Talk City Joint Content
Areas.
If a CIM End User accesses a CIM-linked Talk City Joint
Content Area, [*] percent ([*]%) of the overall
Advertising Inventory for such CIM-linked Talk City
Joint Content Area shall be allocated to CIM to sell,
while [*] percent ([*]%) of such overall
Advertising Inventory shall be allocated to LWP to
sell.
(ii) CIM End Users to the CIM Talk City Service and the CIM
OnNow Service.
If a CIM End User accesses the CIM Talk City Service or
the CIM OnNow Service, [*] percent ([*]%) of the
overall Advertising Inventory on the CIM Talk City
Service and the CIM OnNow Service, as appropriate, that
is accessed by such CIM End User shall be allocated to
CIM to sell, while the remaining fifty percent of such
overall Advertising Inventory shall be allocated to LWP
to sell.
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Confidental treatment has been requested with
respect to the omitted portions.
(iii) End Users from CIM Sites to Other Partner Joint
Content Areas.
If a CIM End User accesses an Other Partner Joint
Content Area, [*] percent ([*]%) of the overall
Advertising Inventory on such Other Partner Joint
Content Area shall be allocated to CIM to sell. The
Other Partner contributing content to such Other
Partner Joint Content Area ("Other Content Partner")
shall be allocated [*] percent ([*]%) of the overall
Advertising Inventory in such Other Partner Joint
Content Area, or in such percentage and other terms
as mutually agreed upon by LWP and such Other
Partner; provided, however, that LWP shall not make
any agreement with any Other Content Partner or third
party that will result in the allocation of less than
[*] percent ([*]%) of the overall Advertising
Inventory on such Other Partner Joint Content Area to
CIM to sell; provided further, however, that LWP may,
in its sole discretion, enter into agreements with
NBC, Hearst, and Other Content-only Partners pursuant
to which no Advertising Inventory on their Other
Partner Joint Content Areas will be allocated to CIM,
in which case SECTIONS 4.3.3(V) and 4.3.3(VI)
ADVERTISING REVENUE SHARING shall apply. LWP shall be
responsible for collecting any revenue split from
Other Content Partner's sales of Advertising
Inventory on such Other Partner Joint Content Areas
due to CIM under SECTION 4.3.3(III) ADVERTISING
REVENUE SHARING below and for promptly remitting such
Advertising Revenue to CIM.
(iv) End Users from Non-CIM Sites to General CIM Talk City
Joint Content Areas.
If an End User other than a CIM End User accesses a
General CIM Talk City Joint Content Area, [*] percent
([*]%) of the overall Advertising Inventory for such
General CIM Talk City Joint Content Area shall be
allocated to CIM to sell, while [*] percent ([*]%) of
such overall Advertising Inventory shall be allocated
to LWP to sell. If the End User accessing a General
CIM Talk City Joint Content Area comes from an Other
Partner site or service, with whom LWP has an
Advertising Inventory splitting agreement, LWP may
give a portion of its [*] percent ([*]%) overall
allocation of Advertising Inventory to such Other
Partner to sell, in such percentage and other terms
as mutually agreed upon by LWP and such Other
Partner; provided, however, that LWP shall not make
any agreement with any Other Partner or third party
that will result in the allocation of less than [*]
percent ([*]) of the overall Advertising Inventory
on such General CIM Talk City Joint Content Areas to
CIM to sell. LWP shall be responsible for collecting
any revenue split from Other Partner's sales of
Advertising Inventory on such General CIM Talk City
Joint Content Areas due to CIM under
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SECTION 4.3.3(IV) ADVERTISING REVENUE SHARING below
and for promptly remitting such Advertising Revenue
to CIM.
All Advertising Inventory allocations to CIM, LWP and/or
Other Partners shall be determined by reference to the
preceding month's actual Advertising Inventory for each
relevant Web site or service.
4.3.3 ADVERTISING REVENUE SHARING.
GENERAL CONCEPT. [*] percent ([*]%) of the Advertising
Revenue sold and collected by CIM, LWP or, to the extent
applicable, an Other Partner (each a "Selling Party" and
collectively, the "Selling Parties") pursuant to the terms
of SECTION 4.3.2 ADVERTISING INVENTORY SPLITS above, shall
be retained by such Selling Party, and the remaining
[*] percent ([*]%) shall be remitted to the non-Selling
Party or if applicable, to the non-Selling Parties. The
[*] percent ([*]%) difference between the Advertising
Revenue retained by a Selling Party and a non-Selling Party
shall represent consideration to the Selling Party for costs
incurred in selling allocated Advertising Inventory or
Excess Inventory, including but not limited to taxes,
advertising agency fees and sales commissions. An
illustrative table for splitting inventory, sharing revenue
and calculating revenue shares by and among CIM, LWP and
where applicable, Other Partners, based on the Advertising
Inventory splits contemplated in SECTION 4.3.2, is attached
hereto as EXHIBIT S.
Advertising Revenue shares shall be calculated as follows:
(i) CIM End Users to the CIM-linked Talk City Joint Content
Areas.
(a) CIM shall retain [*] percent ([*]%) of the
Advertising Revenue that CIM sells and collects from
the [*] percent ([*]%) of the overall
Advertising Inventory it is allocated under SECTION
4.3.2(I) of this Agreement, plus [*] percent
([*]%) of the Advertising Revenue that LWP sells and
collects from the [*] percent ([*]%) of the
overall Advertising Inventory LWP is allocated under
SECTION 4.3.2(I). Assuming, for illustrative purposes
only, that one hundred percent (100%) of the
Advertising Inventory allocations to CIM and LWP are
sold and all such allocations are sold for the same
price, CIM shall receive an aggregate of
[*] percent ([*]%) of the total Advertising
Revenue from sales of Advertising Inventory on the CIM-
linked Talk City Joint Content Areas.
(b) LWP shall retain [*] percent ([*]%) of the
Advertising Revenue that LWP sells and collects from
the [*] percent ([*]%) of the overall
Advertising Inventory it is allocated under SECTION
4.3.2(I) of this Agreement, plus [*] percent
([*]%) of the Advertising Revenue that CIM sells and
collects from the [*] percent ([*]%)
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requested with respect to the omitted
portions.
of the overall Advertising Inventory CIM is allocated
under SECTION 4.3.2(I). Assuming, for illustrative
purposes only, that one hundred percent (100%) of the
Advertising Inventory allocations to CIM and LWP are
sold and all such allocations are sold for the same
price, LWP shall receive an aggregate of [*] percent
([*]%) of the total Advertising Revenue from sales of
Advertising Inventory on the CIM-linked Talk City
Joint Content Areas
(ii) CIM End Users to the CIM Talk City Service and the
CIM OnNow Service.
(a) CIM shall retain [*] percent ([*]%) of the
Advertising Revenue that CIM sells and collects from
the [*] percent ([*]%) of the overall Advertising
Inventory it is allocated under SECTION 4.3.2(II) of
this Agreement, plus [*] percent ([*]%) of the
Advertising Revenue that LWP sells and collects from
the [*] percent ([*]%) of the overall Advertising
Inventory LWP is allocated under SECTION 4.3.2(II).
Assuming, for illustrative purposes only, that one
hundred percent (100%) of the Advertising Inventory
allocations to CIM and LWP are sold and all such
allocations are sold for the same price, CIM shall
receive an aggregate of [*] percent ([*]%) of the
total Advertising Revenue from sales of Advertising
Inventory on the CIM Talk City Service and the CIM
OnNow Service.
(b) LWP shall retain [*] percent ([*]%) of the
Advertising Revenue that LWP sells and collects from
the [*] percent ([*]%) of the overall Advertising
Inventory it is allocated under SECTION 4.3.2(II) of
this Agreement, plus [*] percent ([*]%) of the
Advertising Revenue that CIM sells and collects from
the [*] percent ([*]%) of the overall Advertising
Inventory CIM is allocated under SECTION 4.3.2(II).
Assuming, for illustrative purposes only, that one
hundred percent (100%) of the Advertising Inventory
allocations to CIM and LWP are sold and all such
allocations are sold for the same price, LWP shall
receive an aggregate of [*] percent ([*]%) of the
total Advertising Revenue from sales of Advertising
Inventory on the CIM Talk City Service and the CIM
OnNow Service.
(iii) End Users from CIM Sites to Other Partner Joint
Content Areas.
(a) CIM shall retain [*] percent ([*]%) of the
Advertising Revenue that CIM sells and collects from
the [*] percent ([*]%) of the overall Advertising
Inventory it is allocated under SECTION 4.3.2(III) of
this Agreement, plus [*] percent ([*]%) of the
Advertising Revenue that LWP sells and collects from
the [*] percent ([*]%) of the overall Advertising
Inventory LWP is allocated under SECTION 4.3.2(III).
Assuming, for illustrative purposes only, that one
hundred
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Confidental treatment has been requested with
respect to the omitted portions.
percent (100%) of the Advertising Inventory allocations
to CIM, LWP and an Other Content Partner are sold and
all such allocations are sold for the same price, CIM
shall receive an aggregate of [*] percent ([*]%) of the
total Advertising Revenue from sales of Advertising
Inventory on such Other Partner Joint Content Areas.
(b) LWP shall retain [*] percent ([*]%) of the
Advertising Revenue that LWP sells and collects from
the overall Advertising Inventory it is allocated under
SECTION 4.3.2(III) of this Agreement, plus [*] percent
([*]%) of the Advertising Revenue that CIM sells and
collects from the [*] percent ([*]%) of the overall
Advertising Inventory CIM is allocated under SECTION
4.3.2(III), plus [*] percent ([*]%) of the Advertising
Revenue from the overall Advertising Inventory
allocated to an Other Content Partner under SECTION
4.3.2(III), minus [*] percent ([*]%) of the [*] percent
([*]%) of the Advertising Revenue from the [*] percent
([*]%) of the overall Advertising Inventory CIM is
allocated under SECTION 4.3.2(III), minus [*] percent
([*]%) of the Advertising Revenue from the overall
Advertising Inventory LWP is allocated under SECTION
4.3.2(III). The exact aggregate total Advertising
Revenue LWP shall receive from sales of Advertising
Inventory on any Other Partner Joint Content Areas
shall be dependent on the percentage of Advertising
Inventory on such Other Partner Joint Content Area LWP
agrees to allocate to any particular Other Content
Partner pursuant to SECTION 4.3.2(III), and percentages
of Advertising Revenue to be shared with any Other
Content Partner that are mentioned in this subsection
are included for illustrative purposes only.
(c) For illustrative purposes only, it is assumed that
the Other Content Partner that provides content for any
particular Other Partner Joint Content Area shall
receive [*] percent ([*]%) of the Advertising Revenue
from the overall Advertising Inventory allocated to
such Other Content Partner under SECTION 4.3.2(III),
plus [*] percent ([*]%) of the Advertising Revenue from
the overall Advertising Inventory allocated to LWP
under SECTION 4.3.2(III), plus [*] percent ([*]%) of
the [*] percent ([*]%) of the Advertising Revenue from
the [*] percent ([*]%) of the overall Advertising
Inventory CIM is allocated under SECTION 4.3.2(III).
The exact aggregate total Advertising Revenue an Other
Content Partner shall receive from sales of Advertising
Inventory on any Other Partner Joint Content Areas
shall be dependent on the percentage of Advertising
Inventory on such Other Partner Joint Content Area LWP
agrees to allocate to any particular Other Content
Partner pursuant to SECTION 4.3.2(III), and percentages
of Advertising Revenue to be shared with any Other
Content Partner that are mentioned in this subsection
are included for illustrative purposes only.
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(iv) End Users from Non-CIM Sites to General CIM Talk City
Joint Content Areas.
(a) CIM shall retain [*] percent ([*]%) of the
Advertising Revenue that CIM sells and collects from
the [*] percent ([*]%) of the overall Advertising
Inventory it is allocated under SECTION 4.3.2(IV) of
this Agreement, plus [*] percent ([*]%) of the
Advertising Revenue that LWP sells and collects from
the [*] percent ([*]%) of the overall Advertising
Inventory LWP is allocated under SECTION 4.3.2(IV),
plus [*] percent ([*]%) of the [*] percent ([*]%) of
the Advertising Revenue from the [*] percent ([*]%) of
the overall Advertising Inventory allocated to Other
Partners under SECTION 4.3.2(IV). Assuming, for
illustrative purposes only, that one hundred percent
(100%) of the Advertising Inventory allocations to CIM,
LWP and the Other Partner from which End Users accessed
the CIM Talk City Joint Content Area are sold and all
such allocations are sold for the same price, CIM shall
receive an aggregate of [*] and [*] percent ([*]%) of
the total Advertising Revenue from sales of Advertising
Inventory on such General CIM Talk City Joint Content
Areas.
(b) LWP shall receive [*] percent ([*]%) of the
Advertising Revenue that CIM sells and collects from
the [*] percent ([*]%) overall Advertising Inventory
CIM is allocated under SECTION 4.3.2(IV) of this
Agreement, plus [*] percent ([*]%) of the Advertising
Revenue from the overall Advertising Inventory Other
Partners are allocated under SECTION 4.3.2(IV), plus
[*] percent ([*]%) of the Advertising Revenue from the
overall Advertising Inventory allocated to LWP under
SECTION 4.3.2(IV), minus [*] percent ([*]%) of the [*]
percent ([*]%) of the Advertising Revenue from the
overall Advertising Inventory allocated to Other
Partners under SECTION 4.3.2(IV). The exact aggregate
total Advertising Revenue LWP shall receive from sales
of Advertising Inventory on any General CIM Talk City
Joint Content Areas shall be dependent on the
percentage of Advertising Inventory on such General CIM
Talk City Joint Content Area LWP agrees to allocate to
any particular Other Partner pursuant to SECTION
4.3.2(IV), and percentages of Advertising Revenue to be
shared with an Other Partner that are mentioned in this
subsection are included for illustrative purposes only.
(c) For illustrative purposes only, it is assumed that
any Other Partner providing End User traffic
distribution to a General CIM Talk City Joint Content
Page shall receive [*] percent of the
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respect to the omitted portions.
Advertising Revenue from the overall Advertising
Inventory allocated to such Other Partner under SECTION
4.3.2(IV), plus [*] percent ([*]%) of the Advertising
Revenue from the overall Advertising Inventory
allocated to LWP under SECTION 4.3.2(IV). The exact
aggregate total Advertising Revenue a particular Other
Partner shall receive from sales of Advertising
Inventory on any General CIM Talk City Joint Content
Areas shall be dependent on the percentage of
Advertising Inventory on such General CIM Talk City
Joint Content Area LWP agrees to allocate to such Other
Partner pursuant to SECTION 4.3.2(IV), and percentages
of Advertising Revenue to be shared with an Other
Partner that are mentioned in this subsection are
included for illustrative purposes only.
(v) End Users from CIM Sites to Other Content-only Partner
Areas
(a) If a CIM End User accesses Other Partner Joint
Content Areas of Other Content-only Partners ("Other
Content-only Partner Areas"), including but not limited
to the NBC Areas and the Hearst Areas, CIM shall
receive [*] percent ([*]%) of the [*] percent ([*]%) of
the Advertising Revenue LWP receives from the sale of
Advertising Inventory by the Other Content-only Partner
on such Other Content-only Partner Areas.
(a) If a CIM End User accesses Other Content-only
Partner Areas, including but not limited to the NBC
Areas and the Hearst Areas, LWP shall receive [*]
percent ([*]%) of the [*] percent ([*]%) of the
Advertising Revenue LWP receives from the sale of
Advertising Inventory by the Other Content-only Partner
on such Other Content-only Partner Areas.
(vi) End Users from Other Content-only Partner Areas to CIM
Talk City Areas
(a) If an End User from an Other Content-only Partner
Area accesses CIM Talk City Areas, CIM shall receive
[*] percent ([*]%) of Advertising Revenue it receives
from the sale of Advertising Inventory on such
particular CIM Talk City Areas.
(b) If an End User from an Other Content-only Partner
Area accesses CIM Talk City Areas, LWP shall receive
[*] percent ([*]%) of Advertising Revenue CIM
receives from the sale of Advertising Inventory on such
particular CIM Talk City Areas, from which LWP shall
allocate and remit [*] percent ([*]%), or such
other percentage as LWP and such Other Content-only
Partner shall mutually agree upon, to such Other
Content-only Partner.
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LWP shall be responsible for collecting, remitting to CIM
and, if necessary, auditing the Advertising Revenue split
from Other Partner sales of Advertising Inventory in the
circumstances described in SECTIONS 4.3.3(III) and
4.3.3(IV).
4.3.4 TREATMENT OF EXCESS INVENTORY. In the event that CIM or LWP
finds that it has been allocated Excess Inventory for the
CIM Talk City Service, the CIM OnNow Service and the CIM
Talk City Joint Content Areas, then the party allocated such
Excess Inventory shall make a good faith effort to make such
Excess Inventory available to the other party. Sales and
revenue sharing for such Advertising shall be implemented
consistent with the terms described in SECTION 4.3.3
ADVERTISING REVENUE SHARING as though the reallocated
Advertising Inventory were part of the original allocation
to either party. No party shall be permitted to barter, use
for internal promotion or otherwise dispose of for
consideration that is not subject to sharing under SECTION
4.3.3 ADVERTISING REVENUE SHARING, in excess of [*] percent
([*]%) of the overall Advertising Inventory for the CIM Talk
City Service, the CIM OnNow Service and the CIM Talk City
Joint Content Areas that such party is allocated under
SECTION 4.3.2 ADVERTISING INVENTORY SPLITS without prior
approval of the other party.
4.4 TRANSACTION REVENUE SHARING.
4.4.1 LWP TRANSACTION REVENUE SHARING TO CIM ON PARTNER
TRANSACTION REVENUE. LWP agrees to pay CIM [*] percent
([*]%) of the gross revenue on Partner Transaction Revenue
that occurs as a result of End Users accessing LWP Partner
Transaction Revenue services on and/or from the CIM Sites
(including for this purpose, but not limited to, the CIM
Talk City Service, CIM Talk City Joint Content Areas and/or
the CIM OnNow Service) with such revenue called "CIM
Allocation of LWP Transaction Revenue."
This CIM Allocation of LWP Transaction Revenue will be
calculated by specific tracking mechanisms, if and when such
mechanisms have been put in place by LWP, that track such
revenue and commissions LWP earns on CIM End Users. LWP
shall implement such tracking mechanisms as soon as
practicable after such mechanisms become available in the
market, subject to practicality for LWP to do so and subject
to LWP's then business strategy, implementation and
priorities.
Until such time as LWP has such specific tracking
mechanisms, LWP will calculate transaction revenue splits by
LWP formulas that take the traffic from the CIM Talk City
Service and/or CIM OnNow Service, as appropriate, as a
percentage of total traffic on the Talk City Service and the
OnNow Service and then applying that percentage to the total
LWP Partner Transactions Revenue to arrive at a
determination of a base CIM share of LWP Transaction
Revenue. LWP will multiply the base CIM share of LWP Partner
Transaction Revenue by [*] percent ([*]%) to arrive at the
revenue split to pay CIM.
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4.4.2 LWP TRANSACTION REVENUE SHARING TO CIM ON LWP STORE
TRANSACTION REVENUE. LWP agrees to pay CIM a [*] percent
([*]%) split of its gross revenue on LWP Store Transaction
Revenue that occurs as a result of CIM End Users accessing
LWP Stores from the CIM Sites (including for this purpose,
but not limited to, the CIM Talk City Service, the CIM Talk
City Joint Content Areas and/or the CIM OnNow Service) with
such revenue called "CIM Transaction Revenue from LWP Store
Transactions."
CIM Transaction Revenue from LWP Store Transactions will be
calculated by specific tracking mechanisms, if and when such
mechanisms have been put in place by LWP, that track such
gross revenue LWP earns on CIM End Users. LWP shall
implement such tracking mechanisms as soon as practicable
after such mechanisms become available.
4.4.3 CIM TRANSACTION REVENUE SHARING TO LWP ON CIM E-COMMERCE
SITES.
CIM agrees to pay LWP a revenue split and/or fee for CIM E-
commerce Site Transaction Revenue resulting from any End
Users accessing CIM e-commerce initiatives located in the
CIM Talk City Areas that CIM, at its sole discretion, may
choose to initiate, via the general Talk City Service and/or
the general OnNow Service (but not via CIM Sites, the CIM
Talk City Service, CIM Talk City Joint Content Areas, the
CIM OnNow Service or any sites and services not owned and/or
predominantly operated by LWP).
The CIM e-commerce initiatives that will be subject to
making these payments are listed in EXHIBIT A and noted as
CIM E-commerce Sites.
It is understood that in the case of a CIM e-commerce
initiative that is accessed by an End User through CIM
Sites, the CIM Talk City Service, CIM Talk City Joint
Content Areas, the CIM OnNow Service or any other sites and
services not owned and/or operated by LWP (with the
understanding that any Other Partner versions of a LWP
Service shall be considered sites operated by LWP), CIM will
not pay any revenue split to LWP for CIM E-Commerce Site
Transaction Revenue associated with such End User. If a CIM
E-commerce initiative is accessed by an End User through the
general Talk City Service or the general OnNow Service, CIM
shall pay LWP per the terms listed for each CIM E-commerce
initiative as listed in and attached hereto as EXHIBIT T.
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respect to the omitted portions.
4.5 FUTURE REVENUE.
---------------
The parties agree that if any future revenue generating opportunities
not described above are created in connection with the CIM Talk City
Areas, the parties will negotiate in good faith regarding appropriate
revenue sharing arrangements between the parties; provided, however,
that unless such opportunities involve characteristics which would
make them materially different from the opportunities described above,
the parties intend to share such revenues in a manner mutually agreed
to represent an equitable distribution between LWP and CIM.
It is specifically understood that LWP will not share revenue from its
Corporate Services or User Premium add-ons, unless otherwise agreed to
on a case-by-case basis.
4.6 ADVERTISING OPPORTUNITIES
-------------------------
4.6.1 CIM ADVERTISING ON LWP SERVICES. In addition to the
Advertising impressions provided to CIM by LWP under SECTION
3.6 PROMOTIONAL CONSIDERATION FOR CIM, LWP shall make
available to CIM Advertising on LWP Services at LWP's best
rates and, when requested by CIM, on a first offer basis,
subject to (i) prior existing commitments for such
advertising and sponsorships with third parties, (ii) the
understanding that such offers may at any time be superseded
by package sponsorship deals and/or renewal options in such
deals made with other companies and (iii) the understanding
that such offers will be made available on an equal basis to
other LWP major Investors and if multiple LWP major
Investors wish to avail themselves of the same advertising
or sponsorship opportunity, then the opportunity will be
allocated among them on an equitable basis or on a basis
that LWP judges to be in the best interest of the LWP
Services.
4.7 WAIVER OF LWP SET-UP FEE. LWP expressly acknowledges and agrees that
-------------------------
it has waived its customary [*] dollar ($[*]) set-up fees for the co-
branded services to be provided by LWP to CIM hereunder and that no
such set-up fee shall be applicable to the services to be provided by
LWP to CIM hereunder.
4.8 PAYMENTS AND AUDIT RIGHTS.
--------------------------
4.8.1 PAYMENTS. At the end of each quarter in which LWP or CIM,
respectively, actually receives payments of Advertising
Revenue and/or Transaction Revenue of the type described in
Sections 4.3 or 4.4, LWP or CIM, as the case may be, shall
prepare a quarterly statement providing sufficient detail
regarding the source of such Advertising Revenue or
Transaction Revenue and will deliver such statement along
with the required payment described therein to CIM or LWP,
respectively, no less than thirty (30) days following such
date.
4.8.2 AUDIT RIGHTS. CIM and LWP shall each have the right, upon
reasonable written notice to the other party, to inspect, or
have its agent inspect, subject to such
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respect to the omitted portions.
confidentiality requirements as may reasonably be imposed by the
other party, such other party's books and records and all other
documents and material in the possession of or under its control
with respect to all amounts described in this Agreement at the
place or places where such records are normally retained by LWP
or CIM, respectively. CIM or LWP or their agents shall have free
and full access thereto during normal LWP or CIM business hours
for such purposes and shall be permitted to be able to make
copies thereof and extracts therefrom. In the event that an
inspection reveals a discrepancy in the amount of any payments
owed CIM or LWP from what was actually paid, LWP or CIM shall
promptly pay (or, if applicable, LWP shall cause an Other Partner
to promptly pay) such discrepancy. In the event that such
discrepancy is in excess of five percent (5%) of the payments due
for the period audited, LWP or CIM shall also reimburse the other
party, as appropriate (or, if applicable, LWP shall cause an
Other Partner to promptly reimburse CIM), for the reasonable
costs of performing the audit. All books and records relative to
LWP's, CIM's, or if applicable, an Other Partner's respective
obligations hereunder shall be maintained and kept accessible and
available to CIM or LWP, respectively, for inspection for at
least three (3) years after termination of this Agreement. LWP
shall use commercially reasonable efforts to acquire equal or
substantially equal audit and inspection rights with Other
Partners, particularly those of Other Partners who are allocated
Advertising Inventory on General CIM Talk City Joint Content
Areas under SECTION 5.3.2(IV) or who possess the Advertising
Inventory on their own Other Partner Joint Content Areas
described in SECTION 5.3.2(III) in the event CIM exercises its
Other Traffic Partner Option (as defined below).
5. ALTERNATE RESPONSIBILITIES, GUIDELINES AND FINANCIAL TERMS
----------------------------------------------------------
5.1 GENERAL CONCEPT. CIM shall have the option (the "Option"), at its
discretion and upon reasonable prior notice to LWP, to substitute the
following terms and conditions contained in SECTION 5 ALTERNATE
RESPONSIBILITIES, GUIDELINES AND FINANCIAL TERMS below for the terms
and conditions in SECTION 4 ADVERTISING INVENTORY AND REVENUE
ALLOCATIONS, SALES AND OTHER FINANCIAL TERMS. CIM shall be permitted
to exercise the Option or to elect to return to the terms and
conditions of SECTION 4 ADVERTISING INVENTORY AND REVENUE ALLOCATIONS,
SALES AND OTHER FINANCIAL TERMS no more than once in any given twelve
(12) month period. If CIM does not choose to exercise the Option, then
the terms and conditions contained in this SECTION 5 ALTERNATE
RESPONSIBILITIES, GUIDELINES AND FINANCIAL TERMS shall have no effect
or significance whatsoever.
5.2 ADVERTISING SALES AND ADVERTISING MANAGEMENT RESPONSIBILITIES.
5.2.1 CIM SALES RIGHTS, RESPONSIBILITIES AND GUIDELINES. CIM will
have the following rights to sell and responsibilities in
selling Advertising Inventory it is allocated under this
Agreement:
34
(i) CIM will make a good faith effort to the sell the
Advertising Inventory made available to it under this
Agreement.
(ii) For Advertising Inventory that CIM sells, it will be
responsible for the account management, billing and
collections from the client and for payment of revenue
allocations to LWP.
(iii) CIM will sell the Advertising Inventory it is allocated
packaged into CIM site packages and not specifically as
Talk City or OnNow Advertising.
(iv) CIM shall control and set pricing for its sales of
Advertising Inventory and will follow the CIM advertising
sales guidelines attached in EXHIBIT Q.
(v) CIM will work within the then-current LWP advertisement
standards, the current version of which is attached hereto
in EXHIBIT Q, then-current advertising technical
standards, inventory, and other customary and reasonable
ad/ad process guidelines. If CIM is using LWP's
Advertising management services, then CIM will also work
within such customary and reasonable standard insertion
order, ad scheduling and ad management systems, process
and policies as may be established by LWP.
(vi) Media Personalities. If CIM is selling and running
-------------------
Advertisements on the CIM Talk City Areas in conjunction
with the appearance or promotion of a media personality on
the service, then CIM will not make any statements to the
effect, or which imply, that any such media personality
"certifies," endorses or guarantees the performance of any
service or product of such party unless CIM has otherwise
arranged to do so directly with the media personality or
that media personality's representatives.
(vii) CIM agrees that the Advertising it sells and places in the
CIM Talk City Areas will not include Advertising for any
competitor to any business of LWP of which LWP has
provided CIM notice in EXHIBIT R, attached hereto.
(VIII) CIM will remove from the CIM Talk City Service, the CIM
Talk City Joint Content Areas and the CIM OnNow Service
any Advertising that LWP reasonably requests be removed on
the basis that such Advertising violates the then-current
LWP advertising standards, a current copy of which is
attached hereto AS EXHIBIT Q.
5.2.2 LWP SALES RIGHTS, RESPONSIBILITIES AND GUIDELINES. LWP will
have the following rights to sell and responsibilities in
selling Advertising Inventory it is allocated under this
Agreement:
35
(i) LWP will make a good faith effort to the sell the
Advertising Inventory made available to it under this
Agreement.
(ii) For Advertising Inventory that LWP sells, it will be
responsible for the account management, billing and
collections from the client and for payment of revenue
allocations to CIM.
(iii) LWP will sell the Advertising Inventory it is allocated
packaged into Talk City and OnNow site packages and not
specifically as CIM Sites.
(iv) LWP shall control and set pricing for its sales of
Advertising Inventory, and will follow the LWP
advertising sales guidelines attached hereto as EXHIBIT
Q.
(v) LWP will remove from the CIM Talk City Areas any
Advertising that CIM reasonably requests be removed on
the basis that such Advertising violates the then current
CIM advertising standards (a copy of which is attached
hereto AS EXHIBIT Q).
(vi) Media Personalities. If LWP is selling and running ads on
-------------------
any CIM Talk City Areas in conjunction with the
appearance or promotion of a media personality on the
service, then LWP will not make any statements to the
effect, or which imply, that any such media personality
"certifies," endorses or guarantees the performance of
any service or product of such party unless LWP has
otherwise arranged to do so directly with the media
personality or that media personality's representatives.
(vii) LWP agrees that the Advertising it sells and places in
the CIM Talk City Areas will not include advertising for
any competitor to any business of CIM of which CIM has
provided LWP notice in EXHIBIT R, attached hereto.
5.3 ADVERTISING INVENTORY ALLOCATIONS.
5.3.1 CIM ADVERTISING INVENTORY ALLOCATION AND SALES. CIM shall have
the right to sell all Advertising which appears in the CIM
Specific Areas (the "CIM Advertising Inventory"). If CIM is
unable to sell all available CIM Advertising Inventory, then it
may, in its sole discretion, allow LWP to sell such unsold CIM
Advertising Inventory. If LWP is unable to sell all of the CIM
Advertising Inventory which CIM makes available to it or CIM
chooses not to make its unsold CIM Advertising Inventory
available to LWP, then each of CIM and LWP shall have the right
to use [*] percent ([*]%) of such unsold CIM Advertising
Inventory to advertise any of such party's Web site(s) or other
products or services or its designees which are not Direct CIM
Competitors or
* Certain information in this Exhibit has been omitted
and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted
portions.
36
Direct LWP Competitors as detailed in EXHIBIT L hereto. Any
gross revenue attributable to the sale of CIM Advertising
Inventory which is received by the selling party shall be
divided between the parties with the relevant selling party
receiving [*] percent ([*]%) thereof and the non-selling party
receiving the remaining [*] percent ([*]%) thereof.
5.3.2 LWP ADVERTISING INVENTORY ALLOCATION AND SALES. Subject to the
terms of SECTION 5.3.1, LWP shall have the right to sell all
Advertising which appears in any areas of the CIM Talk City
Areas which are not CIM Specific Areas (the "LWP Advertising
Inventory," and together with the CIM Advertising Inventory,
the "CIM-LWP Advertising Inventory"). If LWP is unable to sell
all available LWP Advertising Inventory, then it may, at its
sole discretion, allow CIM to sell such unsold LWP Advertising
Inventory. If CIM is unable to sell all of the LWP Advertising
Inventory which LWP makes available to it or LWP chooses not to
make its unsold LWP Advertising Inventory available to LWP,
then each of CIM and LWP shall have the right to use [*]
percent ([*]%) of such unsold LWP Advertising Inventory to
advertise any of such party's Web site(s) or other products or
services or its designees which are not Direct CIM Competitors
or Direct LWP Competitors as detailed in EXHIBIT L hereto. Any
gross revenue attributable to the sale of LWP Advertising
Inventory which is received by the selling party shall be
divided between the parties with the relevant selling party
receiving [*] percent ([*]%) thereof and the non-selling party
receiving the remaining [*] percent ([*]%) thereof.
5.4 ADVERTISING REVENUE ALLOCATIONS.
5.4.1 GENERAL. In general, the party selling Advertising Inventory
shall receive [*] percent of the ([*]%) gross revenue received
by such selling party for such Advertising Inventory, and shall
remit [*] percent ([*]%) of the gross revenue received to the
non-selling party.
5.4.2 CIM END USERS TO OTHER CONTENT-ONLY PARTNER AREAS.
(i) If a CIM End User accesses Other Content-only Partner
Areas, including but not limited to the NBC Areas and the
Hearst Areas, CIM shall receive [*] percent ([*]%) of the [*]
percent ([*]%) of the Advertising Revenue LWP receives from the
sale of Advertising Inventory by the Other Content-only Partner
on the Other Content-only Partner Areas accessed by such CIM
End Users.
(ii) If a CIM End User accesses Other Content-only Partner
Areas, including but not limited to the NBC Areas and the
Hearst Areas, LWP shall receive [*] percent ([*]%) of the [*]
percent ([*]%) of the Advertising Revenue LWP receives from the
sale of Advertising Inventory by the Other Content-only Partner
on such Other Content-only Partner Areas.
37
* Certain information on this page has been
omitted and filed with the Commission.
Confidental treatment has been requested with
respect to the omitted portions.
6. MOST FAVORED NATION
-------------------
LWP agrees that if LWP enters, or plans on entering into, any agreement or
relationship with any Investor or Other Partner which grants or is
reasonably likely to grant such Investor or Other Partner either (i) more
favorable [*], (ii) more favorable [*] of such Investor's or Other
Partner's [*], or (iii) more favorable [*] than those granted to CIM under
this Agreement, then LWP shall notify CIM of the terms of such agreement or
relationship and if requested by CIM, this Agreement with CIM shall be [*]
effective as of date of such agreement between LWP and such Investor(s) or
Other Partner(s).
7. TERM, RENEWAL AND TERMINATION.
------------------------------
7.1 INITIAL TERM. The initial term of this Agreement shall be three (3)
years from the Effective Date of this Agreement (the "Initial Term").
7.2 AUTOMATIC RENEWAL. This Agreement shall be automatically extended, at
CIM's option, for one (1) additional two-year period (referred to
herein, together with the additional terms described in the following
sentence, as a "Renewal Term") upon the completion of the Initial
Term. If CIM opts to commence a first Renewal Term, this Agreement
thereafter shall be automatically extended upon the completion of such
first Renewal Term for additional two-year periods unless either party
notifies the other in writing of its election to have the Agreement
expire at least sixty (60) days in advance of the end of the then-
current term. This Agreement is further subject to the two parties
concluding, on mutually acceptable terms, an agreement for CIM to take
make an equity investment in LWP's Series D Preferred Stock financing
round. If such agreement is not reached, this Agreement shall be
terminable by CIM or LWP at any time.
7.3 TERMINATION FOR MATERIAL BREACH. In addition, either party may
terminate this Agreement at any time in the event of a material breach
by the other party which remains uncured after thirty (30) days' prior
written notice thereof.
8. REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATIONS
---------------------------------------------------
8.1 REPRESENTATIONS AND WARRANTIES.
8.1.1 LWP REPRESENTATIONS AND WARRANTIES. LWP represents and warrants
to CIM that (i) it has the right and power to perform its
obligations and to grant the rights granted herein, (ii) LWP's
creation and operation of the CIM Talk City Service, the CIM
Talk City Joint Content Areas, the CIM OnNow Service, the Talk
City Service and the OnNow Service pursuant to this Agreement
will not violate any agreement or obligation between LWP and a
third party or any laws or regulations and (iii) except for
material provided by CIM and its licensors, suppliers or agents
pursuant to the terms hereof, the content included on the CIM
Talk City Service, the CIM Talk City Joint Content Areas, the
CIM OnNow
38
* Certain information on this page has been
omitted and filed with the Commission.
Confidental treatment has been requested with
respect to the omitted portions.
Service, the Talk City Service and the OnNow Service and the
operation of the CIM Talk City Service, the CIM Talk City Joint
Content Areas, the CIM OnNow Service, the Talk City Service and
the OnNow Service by LWP as contemplated herein will be
accurate and correct, will not violate or infringe any third
party rights, including intellectual property rights, and will
not adversely affect the operation of the CIM Sites in a
material manner.
8.1.2 CIM REPRESENTATIONS AND WARRANTIES. CIM represents and warrants
to LWP that (i) it has the right and power to perform its
obligations and to grant the rights granted herein, (ii) CIM's
creation and operation of the CIM Sites, the CIM Talk City
Service, the CIM Talk City Joint Content Areas and the CIM
OnNow Service pursuant to this Agreement will not violate any
agreement or obligation between CIM and a third party or any
laws or regulations and (iii) except for material provided by
LWP and its licensors, suppliers or agents pursuant to the
terms hereof, the content included on the CIM Sites, the CIM
Talk City Service, the CIM Talk City Joint Content Areas and
the CIM OnNow Service as contemplated herein will be accurate
and correct, will not violate or infringe any third party
rights, including intellectual property rights, and will not
adversely affect the operation of the LWP Services in a
material manner.
8.2 INDEMNIFICATION.
8.2.1 LWP INDEMNIFIES CIM. LWP agrees to indemnify and hold harmless
CIM, and its affiliates, directors, officers and employees,
from and against any and all claims, liabilities, losses and
actual damages, including reasonable attorney's fees of counsel
of CIM's choosing, caused by, arising out of or related to (i)
LWP's operation and management of the CIM Talk City Service,
the CIM Talk City Joint Content Areas, the CIM OnNow Service,
the Talk City Service and the OnNow Service, (ii) any breach of
LWP's representations and/or warranties set forth in this
Agreement or (iii) any breach of LWP's covenants set forth in
this Agreement or other failure to perform in accordance with
the terms hereof.
8.2.2 CIM INDEMNIFIES LWP. CIM agrees to indemnify and hold harmless
LWP, and its affiliates, directors, officers and employees,
from and against, any and all claims, liabilities, losses and
actual damages, including reasonable attorney's fees of counsel
of LWP's choosing, caused by, arising out of or related to (i)
any breach of CIM's representations and/or warranties set forth
in this Agreement or (ii) any breach of CIM's covenants set
forth in this Agreement or other failure to perform in
accordance with the terms hereof.
8.2.3 CONTROL OF LITIGATION. The indemnitor hereunder shall have full
control of the defense of litigation relating to a claim for
indemnity hereunder and may settle, compromise or adjust the
same; provided, that an indemnitor may not consent to any entry
of judgment or enter into any such settlement, compromise or
adjustment which does not include as an unconditional term
thereof the giving by the plaintiff or claimant to the
indemnified party of a release of all liability in
39
respect of the claim, liability or litigation); and provided
further, however, that the indemnitee, upon relieving the
indemnitor in writing of the obligations imposed hereunder for
defense and indemnification, shall have the right, if it so
elects, to conduct such litigation at its own expense by its
own counsel.
8.2.4 NOTICE AND DURATION. The above obligations for defense and
indemnification shall be imposed only if (i) the indemnitee
sends to the indemnitor timely written notice of first service
of process upon the indemnitee and a timely written request to
defend the litigation (such notice and request shall be deemed
timely if given within a reasonable length of time after
receipt of service by the indemnitee and a reasonable length of
time prior to the date by which first response to such process
is legally required, considering all the circumstances); (ii)
while such litigation is pending, the indemnitee, upon request,
shall furnish to the indemnitor all relevant facts and
documentary material in the former's possession or under its
control, and shall make its employees or other persons under
its control with knowledge of relevant facts reasonably
available to the indemnitor for consultation and as witnesses
at their customary places of business; and (iii) the indemnitee
does not enter into any settlement relating to any claim for
which it requests indemnification hereunder without the prior
approval of the indemnitor.
8.2.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY LOSS OF PROSPECTIVE PROFITS OR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES BY REASON OF ANY
FAILURE BY SUCH PARTY TO PERFORM ITS OBLIGATIONS PURSUANT TO
THIS AGREEMENT.
9. GENERAL PROVISIONS.
-------------------
9.1 FORCE MAJEURE. Neither party shall be liable for, or be considered in
breach of or default under this Agreement on account of, any delay or
failure to perform as required by this Agreement as a result of any
causes or conditions which are beyond such party's reasonable control
and which such party is unable to overcome by the exercise of
reasonable diligence. Notwithstanding the foregoing, either party may
terminate this Agreement upon written notice to the other party in the
event such failure to perform continues unremedied for a period of
thirty (30) days in the aggregate.
9.2 INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors. Neither party is an agent, representative, or partner of
the other party. Neither party shall have any right, power or
authority to enter into any agreement for or on behalf of, or incur
any obligation or liability of, or to otherwise bind, the other party.
This Agreement shall not be interpreted or construed to create an
association, joint venture or partnership between the parties or to
impose any partnership obligation or liability upon either party.
40
9.3 SURVIVAL. Sections 1, 2.9, 4.8, 8.1, 8.2, 9.2, 9.3, 9.9 and 9.10 shall
survive the completion, expiration, termination or cancellation of
this Agreement.
9.4 WAIVER. The failure of either party to insist upon or enforce strict
performance by the other party of any provision of this Agreement or
to exercise any right under this Agreement shall not be construed as a
waiver or relinquishment to any extent of such party's right to assert
or rely upon any such provision or right in that or any other
instance; rather, the same shall be and remain in full force and
effect.
9.5 ENTIRE AGREEMENT. This Agreement together with the Exhibits attached
hereto, which are hereby incorporated herein, sets forth the entire
agreement, and supersedes any and all prior agreements, of the parties
with respect to the transactions set forth herein.
9.6 AMENDMENT. No change, amendment or modification of any provision of
this Agreement shall be valid unless set forth in a written instrument
signed by the party to be bound thereby.
9.7 ASSIGNMENT. Neither party shall assign this Agreement or any right,
interest or benefit under this Agreement without the prior written
consent of the other party; provided, however, that no consent shall
be unreasonably withheld and provided further that CIM shall have the
right to assign its rights hereunder to any direct or indirect
subsidiary of Xxx Enterprises, Inc. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and
assigns.
9.8 PARTIAL INVALIDITY. 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, such provision shall be deemed to
be restated to reflect as nearly as possible the original intentions
of the parties in accordance with applicable law, and the remainder of
this Agreement shall remain in full force and effect.
9.9 CONFIDENTIALITY. Each party hereto agrees to hold the terms and
conditions of this Agreement and all information and material provided
by the other party hereunder and identified at the time of disclosure
as confidential to such party (the "Confidential Information") in
confidence during the term of this Agreement and for three (3) years
thereafter. "Confidential Information" shall not include information
that: (i) is or becomes generally known or available, whether by
publication, commercial use or otherwise, without restriction on
disclosure and through no fault of the receiving party; (ii) is known
by the receiving party prior to the time of disclosure; (iii) is
independently developed or learned by the receiving party without
reference to any Confidential Information of the disclosing party;
(iv) is lawfully obtained from a third party that the receiving party
reasonably believes has the right to make such disclosure. The other
provisions of this Agreement notwithstanding, either party will be
permitted to disclose the terms and conditions of this Agreement to
their outside legal and financial advisors and to the extent required
by applicable law; provided, however, that before making
41
any such required public filing or disclosure, the disclosing party
shall first give written notice of the intended disclosure to the
other party, within a reasonable time prior to the time when
disclosure is to be made, and the disclosing party will exercise
commercially reasonable best efforts, in cooperation with the other
party, consistent with reasonable time constraints, to obtain
confidential treatment for all non-public and sensitive provisions of
this Agreement, including without limitation dollar amounts and other
numerical information.
9.10 APPLICABLE LAW: JURISDICTION. This Agreement shall be interpreted,
construed and enforced in all respects in accordance with the laws of
the State of New York without reference to conflict of law principles.
9.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when taken together shall constitute one
and the same instrument.
42
10. SIGNATURES.
-----------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
LIVE WORLD PRODUCTIONS, INC. XXX INTERACTIVE MEDIA, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
Print Name: Xxxxx Xxxxxxxx Print Name: Xxxxx X. Xxxxxx
Title: President Title: President
43
LIST OF EXHIBITS
----------------
EXHIBIT A. CIM Sites.
---------
EXHIBIT B. Procedures for Designation of CIM Talk City Joint Content Areas.
---------
EXHIBIT C. Concept samples of the customized co-branded CIM Talk City Service
---------
and CIM OnNow Service.
EXHIBIT D. Concept samples of the customized co-branded CIM Talk City Joint
---------
Content Areas.
EXHIBIT E. Additional specific links to the CIM Sites in Exhibit A, if any, to
---------
be provided in the Talk City Service, OnNow Service, CIM Talk City
Service, and/or CIM OnNow Service.
EXHIBIT F. Technologies that LWP and CIM specifically agree to utilize and/or
---------
showcase and any specific requirements related to that use.
EXHIBIT G. Additional LWP obligations relating to service or product
---------
implementation, if any.
EXHIBIT H. Concept samples of the integration of the CIM Talk City Service and
---------
the CIM OnNow Service into the CIM Sites listed in Exhibit A.
EXHIBIT I. Additional specific links required on the part of CIM.
---------
EXHIBIT J. Additional CIM obligations relating to service or product
---------
implementation, if any.
EXHIBIT K. CIM and LWP sites or services that will be featured exclusively.
---------
EXHIBIT L. Direct Competitors to CIM and LWP.
---------
EXHIBIT M. Timeline.
---------
EXHIBIT N. Talk City Terms of Service and Code of Conduct as of June, 1998,
---------
EXHIBIT O. LWP Privacy and User Information and User Communication Policies as
---------
of June, 1998.
EXHIBIT P. Formats for CIM data, transcripts and other End User work product.
---------
EXHIBIT Q. LWP and CIM advertising standards as of June, 1998.
---------
EXHIBIT R. Competitors for whom the parties are restricted from selling
---------
advertising to for the CIM Talk City Service, the CIM OnNow Service
and the CIM Talk City Joint Content Areas.
EXHIBIT S. Illustrative table for calculating revenue, revenue splits and
---------
inventory splits.
EXHIBIT T. CIM Transaction Revenue Sharing to LWP on CIM E-commerce Sites.
---------
EXHIBIT A. CIM Sites.
---------
CIM reserves the right to add to or amend this EXHIBIT A at any time, pursuant
to the terms contained in SECTION 2.2.1 (LWP SERVICE IMPLEMENTATION OF THE CO-
BRANDED SERVICES) of this Agreement.
GEOGRAPHICALLY-ORIENTED SITES AND SERVICES
------------------------------------------
XxxxxxXxxxxxx.xxx
XxxxxxXxxxxxx.xxx
XxxxxxXxxx.xxx
XxxxxxXxxxxx.xxx
Xxxxxx000.xxx
XxxXxxxxxx.xxx
Xxxxx0000.xxx
XxXxxxxxxxx.xxx
XxXXX.xxx
XXXxxxxxxx.xxx
XxxxxxXxxxxxxXxxxxxx.xxx
XX0000.xxx
Xxxx-Xxxxxxx.xxx
XXXxx.xxx
XxxxXxxxxxxxxx.xxx
Xxxxxxxxx.xxx
XxxXxxxxXxxxxxx.xxx
XXXxx.xxx
000Xxxxxx.xxx
XxxxxxxXxxxx.xxx
TOPICALLY-ORIENTED SITES AND SERVICES
------------------------------------
XxxxXxxxxxx.xxx
Xxxxxxxx.xxx
The Shopping Channel
XxXxx00.xxx
XxxxxXxxxxxxx.xxx
XXXXxxxxx.xxx
Xxxxx00.xxx
Y'xxx.xxx
OTHER SITES AND SERVICES
-----------------------
@ Home Sites
EXHIBIT B. Procedures for Designation of CIM Talk City Joint Content Areas.
---------
CIM and LWP have agreed to cooperate, in good faith, to develop procedures to
designate CIM Talk City Joint Content Areas as soon as practicable and/or
commercially reasonable.
EXHIBIT C. Concept samples of the customized co-branded CIM Talk City Service
---------
and CIM OnNow Service and of the general Talk City Service with a
link to CIM Sites on the top page.
See attached printouts of:
1. General Talk City home page with local pulldown, local button
Available at
xxxx://xxxxxxxxxxxxx.xxx/XXXXXXXX/xxxxxxx/xxxxxxxx/xxxxxxxx_xxxxxxxx.xxx
------------------------------------------------------------------------
2. Talk City/CIM co-branded home page
Available at
xxxx://xxxxxxxxxxxxx.xxx/XXXXXXXX/xxxxxxx/xxxxxxxx/xxxxxxxx_xxxxxxx000.xxx
--------------------------------------------------------------------------
3. On Now calendar
Available at
xxxx://xxxxxxxxxxxxx.xxx/XXXXXXXX/xxxxxxx/xxxxxxxx/xxxxxxxx_xxxxxxx000.xxx
--------------------------------------------------------------------------
EXHIBIT D. Concept samples of the customized co-branded CIM Talk City Joint
---------
Content Areas.
See attached printout, available at
xxxx://xxxxxxxxxxxxx.xxx/XXXXXXXX/xxxxxxx/xxxxxxxx/xxxxxxxx_xxxxxxx000.xxx
--------------------------------------------------------------------------
EXHIBIT E. Additional specific links to the CIM Sites in Exhibit A, if any, to
---------
be provided in the Talk City Service, OnNow Service, CIM Talk City Service,
and/or CIM OnNow Service.
Local Communities Link on top level of Talk City Service and CIM Talk City
Service that will link to Talk City Local community activity (Chats, Boards,
Home Pages, etc.) including CIM Local Community activity, including CIM Talk
City Joint Content Areas and links to CIM Sites with local content focus.
LWP shall develop, in cooperation with CIM, localized versions of the Chats
associated with the various Chat channels offered by Talk City, subject to
either it being commercially reasonable for LWP to do so, or CIM agreeing to pay
TBD fees for such services.
LWP and CIM shall collaborate and cooperate in connection with the development
of appropriate ontologies and directories that will integrate listings for the
CIM Talk City Service, the CIM Talk City Joint Content Areas, the CIM OnNow
Service and for other localized channels into the directories and indices of
Talk City and OnNow, and in connection therewith, LWP shall collaborate with CIM
and representatives of LookSmart Ltd. to implement and integrate such ontologies
and directories into the Talk City and OnNow services in an effective,
commercially reasonable manner, subject to LWP and LookSmart Ltd. concluding a
mutually acceptable commercial agreement to do so.
LWP agrees that CIM shall have the right, at a future date during the term of
this Agreement, to add to or amend this Exhibit E, subject to mutual agreement
of the parties, which agreement shall not be unreasonably withheld.
EXHIBIT F. Technologies that LWP and CIM specifically agree to utilize and/or
---------
showcase and any specific requirements related to that use.
From CIM
--------
CIM Group Builder web page building tools in conjunction with the Home Pages in
the LWP Services.
From LWP
--------
Chat functionalities and personal publishing tools used in conjunction with the
Home Pages in the LWP Services.
EXHIBIT G Additional LWP obligations relating to service or product
---------
implementation, if any.
With regards to Instant Messaging, LWP will, by the end of calendar X0 0000,
evaluate the then current commercially available Instant Messaging solutions and
any emerging standards relating to Instant messaging across the Internet. With
the completed evaluation and subject to the content of that evaluation, LWP will
use commercially reasonable efforts to roll out Instant Messaging by the end of
calendar Q2 1999.
CIM and LWP agree that CIM shall have the right, at a future date during the
term of this Agreement, to list here the additional LWP obligations relating to
service or product implementation, if any, subject to commercially
reasonableness..
CIM reserves the right to add to or amend this EXHIBIT G at any time, subject to
mutual agreement of the parties, which agreement shall not be unreasonably
withheld.
EXHIBIT H. Concept samples of the integration of the CIM Talk City Service and
---------
the CIM OnNow Service into the CIM Sites listed in EXHIBIT A.
See attached printout of:
1. CIM home page with links to chat, build a home page etc
Available at
xxxx://xxxxxxxxxxxxx.xxx/XXXXXXXX/xxxxxxx/xxxxxxxx/xx homepage.jpg
------------------------------------------------------------------
2. CIM community page with links to chat, On Now, personal home pages
Available at
xxxx://xxxxxxxxxxxxx.xxx/XXXXXXXX/xxxxxxx/xxxxxxxx/xx community002.jpg
----------------------------------------------------------------------
3. CIM channel page with links to chat, personal home pages
Available at
xxxx://xxxxxxxxxxxxx.xxx/XXXXXXXX/xxxxxxx/xxxxxxxx/xx letsgoout.jpg
-------------------------------------------------------------------
EXHIBIT I. Additional specific links required on the part of CIM.
---------
None.
EXHIBIT J. Additional CIM obligations relating to service or product
---------
implementation, if any.
None.
EXHIBIT K. CIM Sites and services that will be featured exclusively.
---------
Unless otherwise stated, this EXHIBIT K incorporates by reference all CIM sites
specified on EXHIBIT A of this Agreement, as such EXHIBIT A may be amended
pursuant to SECTION 2.2.1 (LWP SERVICE IMPLEMENTATION OF THE CO-BRANDED
SERVICES) of this Agreement.
EXHIBIT L. Direct Competitors for CIM and LWP.
---------
DIRECT CIM COMPETITORS
----------------------
Alta Vista
AOL-Digital Cities
CitySearch
Xxxx.Xxx
Excite
Geocities
Infoseek
Knight Ridder (Real Cities, Just Go)
Lycos/Tripod
Microsoft (Start, Sidewalk, etc.)
Mining Co.
New York Today
Web Crawler
Yahoo (Metros)
Zip2
Any entity substantially engaged in the creation of local city sites or the
publishing of locally oriented information on the Internet or any competing
local city site or local network of city sites, or any other site substantially
devoted to the provision of locally oriented online content or services which
directly competes with CIM, including but not limited to sites and services
owned or operated by television stations, radio stations, newspapers and other
periodicals focusing on local content.
CIM reserves the right to add to and amend this EXHIBIT L, subject to
mutual agreement by the parties, which agreement shall not be unreasonably
withheld.
DIRECT LWP COMPETITORS
----------------------
To Talk City
------------
AOL
GeoCities
The Xxxxx.xxx
InfoSeek WBS
Lycos Tripod
Who Where's Angelfire
Xzoom
Yahoo Chat
Other online services that are primarily oriented toward providing a broad
array of community services including any or all of chat, home pages, discussion
boards and other such services, as mutually agreed to by the parties.
To OnNow
--------
Net Guide Live Events Listings
Xxxx.xxx
Yahoo Net Events
Other online services that are primarily oriented toward providing a broad
array of community services including any or all of chat, home pages, discussion
boards and other such services, as mutually agreed to by the parties.
EXHIBIT M. Timeline.
---------
June 1998: Operating Agreement and Series D Equity Investment Agreement signed.
June-July 1998: Press Announcement.
July-September 1998: LWP to release CIM Talk City Service and CIM OnNow Service,
subject to CIM providing necessary materials, input and approvals and
reasonableness of development, ramp and release implementation. CIM to link
these services into the CIM Sites.
CIM TALK CITY SERVICE AND CIM ONNOW SERVICE LAUNCH TIMELINE
-----------------------------------------------------------
WEEK OF CITY
------- ----
July 28, 0000 Xxxxxxx, XX
Xxx Xxxxx, XX
Xxx Xxxxxxxxx, XX
Xxxxxxx Xxxxx, XX
August 3, 0000 Xxxxxxx, XX
Xxxxxxxxx, XX
August 10, 0000 Xxxxxxx, XX
Xxxxxxx, XX
August 17, 1998 Dayton, OH
Providence, RI
August 24, 0000 Xxxxx, XX
Xxxxxx, XX
August 31, 0000 Xxxxxx Xxxxxx, XX
Xxxx Xxxxx, XX
September 6, 0000 Xxxxx, XX
Xxxxxxxxxx, XX
EXHIBIT N. Talk City Terms of Service and Code of Conduct as of June, 1998.
---------
xxxx://xxx.xxxxxxxx.xxx/xxx/XXX.xxxxx
-------------------------------------
TALK CITY TERMS OF SERVICE AND CONDITIONS OF USE
------------------------------------------------
Welcome to Talk City. This Agreement states the terms and conditions governing
the use of membership services on the Talk City Web Site (xxxx.xxxxxxxx.xxx),
hereafter called the "Site." Membership on the Site provides registered Members
(each a "Citizen") with a package of content and services. Talk City may, at its
discretion, add or delete features. By registering as a Citizen, you agree to
use the Site in a manner consistent with all applicable laws and regulations and
in accordance with the terms and conditions stated below.
1. PRICE AND PAYMENT
Talk City membership content and services are available free of charge,
exclusive of other Internet or other telecommunications fees. Talk City may
offer fee-based membership programs in the future.
2. TERMS OF CITIZENSHIP
Citizenship is available to anyone who registers all required information,
provides an accurate, legitimate electronic mail address, and obtains a unique
Talk City Citizen Name and password. Talk City does not discriminate on the
basis of age, gender, or ethnicity. Citizenship is intended for personal use
only and is non-transferable. Please see the "Termination of Service" clause
below for additional Citizenship information.
No information should be submitted to or posted at Talk City's Web Sites by
children 16 years of age or under without their parent's or guardian's consent.
Talk City makes a special effort to advise those 16 and under to get parental
permission before providing information or submitting any material to put
online, and we urge parents to supervise their children's online use.
3. CITIZEN WEB PAGE GUIDELINES
Talk City provides Citizen Web pages and the associated storage space in the
Site as a service to Citizens. Talk City is not responsible for the content of
any personal home page, and the views expressed in the Site are the
responsibility of the posting Citizen and not Talk City. Talk City does not
review Citizen Web pages in any way before they appear on the Site. Talk City
reserves the right to remove any page from the Site. Talk City places an
advertisement, a Talk City home button, and a navigational masthead at the top
of all pages in the Site. Talk City also places a legal disclaimer at the bottom
of all pages within the Site. Removal of the advertisement, Talk City home
button, navigational masthead, and or disclaimer or any additional information
placed on the Citizen's page by Talk City is grounds for removal of that page
and termination of Talk City Citizenship.
Talk City provides space for Citizen Web pages, but makes no implied or express
warranties about the reliability of these pages. Talk City is not responsible
for any damage caused by loss of access to, or deletion or alteration of Citizen
pages; individual Citizens are responsible for monitoring and creating backups
of their pages.
Every Citizen creating a home page must adhere to Talk City's standards of
content. We have found the following standards promote communication in an
atmosphere of mutual respect:
A) WE DON'T TOLERATE HARASSMENT.
We welcome people of all ages, races, religions, genders, national origins,
sexual orientations and points of view. We don't tolerate expressions of
bigotry, hatred, harassment or abuse, nor will we tolerate threats of harm to
anyone. Because we encourage discussion and exchange of ideas, we don't allow
defamatory, abusive, tasteless or indecorous content or statements. For the same
reason, we don't allow sexually explicit material on the Citizen Web pages, nor
links to such material. Topics dealing with human sexuality and other similar
subjects can be discussed, but in an educational structured and monitored
environment.
B) WE ALLOW ONLY LEGAL ACTIVITIES.
Although this seems obvious, we don't allow any illegal activities.
Specifically, we won't let you advocate illegal conduct or participate in
illegal or fraudulent schemes. You can't use Citizen Web pages to distribute
unauthorized copies of copyrighted material, including photos, artwork, text,
recordings, designs or computer programs. Talk City does not allow the posting
or use of computer programs that contain destructive features, such as viruses,
worms, Trojan horses, bots scripts and any other form of invasive software. Talk
City will not condone the following activities on Talk City:
i) making available copyrighted software which has been "cracked" - i.e., the
copyright protection has been removed from the software;
ii) making available serial numbers for software which can be used to
illegally validate or register software;
iii) making available tools which can be used for no purpose other than for
"cracking" software (this does not include tools which have legitimate uses for
software developers, system administrators, etc.).
Although Talk City cannot monitor all the postings in the chat rooms, home
pages, discussion boards and other public areas, we reserve the right (but
assume no obligation) to delete, move, or edit any postings that come to our
attention that we consider unacceptable or inappropriate, whether for legal or
other reasons.
We reserve the right to immediately remove your Citizen Web pages for content
that we believe interferes with other peoples' enjoyment.
We want your use of your Citizen Web pages here to be enjoyable. If you have
questions about our standards, or you find a Citizen's page that is particularly
enjoyable, or one that you feel violates our standards, then please tell us
about it by clicking on the "Your Comments On This Page?" button on that page.
4. COMMERCIAL ACTIVITY ON CITIZEN WEB PAGES.
Use of your Citizen Web pages for commercial purposes may be limited by the
following:
A) No offering for sale of any products or services;
B) No soliciting for advertisers or sponsors;
C) No displaying of a sponsorship banner of any kind, including those that are
generated by banner or link exchange services, with the sole exception of those
placed there by Talk City or its affiliates;
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D) No displaying of banners for services that provide cash or cash-equivalent
prizes to users in exchange for hyperlinks to their web site;
E) No promoting or soliciting for participation in multi-level marketing or
pyramid schemes;
F) No conducting raffles or contests that require any type of entry fee;
G) No violating Internet standards for the purpose of promoting your Citizen
Web pages; i.e., mass mailing of unsolicited email to others; mass cross posting
to Newsgroups, etc.;
H) No developing pages that consist of hyperlinks to content not allowed in
Talk City.
5. TALK CITY CITIZEN PROFILES
Initially, Citizen Web pages will be created from the information entered into
your Talk City Citizen Profile. Therefore, the content contained on Citizen
Profiles should conform to the same content standards described in this
Agreement. In addition it is suggested that no revealing personal information be
placed in the Citizen Profile, or later, when customization of Citizen Web pages
is available, on those pages.
6. RULES FOR ONLINE CONDUCT: TALK CITY MESSAGE BOARDS, CHATROOMS, AND
AUDITORIUMS
By participating in any of the above services, the Citizen agrees to follow the
Talk City Standards as outlined at xxxx://xxx.xxxxxxxx.xxx/xxx/. The information
on that page (and as
----------------------------
amended) is deemed to be incorporated into this document. Postings to Message
Boards, and communication in Chatrooms and Auditoriums are not reviewed prior to
appearing on the Site. Talk City reserves the right to edit, delete, or move any
Postings to Message Boards and to terminate or suspend access to our chats for
conduct that we believe interferes with other peoples' enjoyment. Talk City
provides chats on a number of topics, but Talk City staff or volunteer hosts do
not offer professional advice of any kind, and are speaking from their own
experience or opinion as is helpful for the facilitating of conversation. Such
personnel claim no professional expertise or authority.
We do our best to encourage comfort and discourage disruptive communication.
We also discourage disruptive statements that incite others to violate our
standards. We encourage your participation in upholding our standards.
When in doubt about appropriate behavior here, remember that Talk City is an
electronic world, but the people here are real. So, just as when you join any
gathering of people, we ask that you treat others with respect and with care.
7. PRIVACY
Please review our policy with regards to a users right to privacy at
xxxx://xxx.xxxxxxxx.xxx/xxx/xxxxxxx.xxxxx. The information on that page (and as
amended) is
-----------------------------------------
deemed to be incorporated into this document.
The exchange between Talk City and the Citizen of information such as passwords
or electronic mail may not be secure given the current state of the Internet.
Talk City encourages Citizens to change their passwords frequently.
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By submitting material to Talk City, you are permanently granting Talk City all
rights to the material, including the right to modify the material, to use it
commercially, and to maintain the material in an archive.
8. COPYRIGHTED MATERIAL
All material on the Site, including, without limitation, text, software, photos,
video, graphics, music and sound, are protected by U.S. and international
copyright laws, both as individual works and as a collection. The downloading or
use of copyrighted material provided by Talk City or a third-party content
provider is allowed by Citizens for personal use only on the Site. Citizens may
not copy, reproduce, retransmit, distribute, publish, commercially exploit, or
otherwise transfer any such copyrighted material in any format, electronic or
otherwise. Any material protected by copyright may not be placed on the Site or
the Citizenship area without the express permission of the author or owner of
the copyright on that material. With specific regard to issues of software
piracy, please see section 3B above.
9. LIMITATIONS OF LIABILITY AND WARRANTY
The Citizen agrees that the use of the Site is entirely at the Citizen's own
risk. The Site is provided on an "as is" basis without warranties of any kind,
either expressed or implied. Furthermore, Talk City, Xxx Interactive Media and
other third-party content providers make no warranty with respect to any-
content, information, services, or products provided through or in conjunction
with the Site.
The Citizen specifically agrees that Talk City, Xxx Interactive Media and other
third-party content providers are not liable for any conduct by Citizens
associated with the Site, including, but not limited to, Citizen Web pages,
Citizen Profiles, message boards, chatrooms, or auditoriums. Talk City, Xxx
Interactive Media and other third-party content providers make no guarantee of
the accuracy, correctness, or completeness of any information on the Site and
are not responsible for (i) any errors or omissions arising from the use of such
information; (ii) any failures, delays, or interruptions in the delivery of any
content or services contained within the Site; or (iii) losses or damages
arising from the use of the content or services provided by the Site.
10. INDEMNITY
As a Citizen, you agree to indemnify Talk City and any third-party information
provider against any and all claims and expenses, including attorneys' fees,
arising from the Citizen's use of the Site. This expressly includes: (i)
Citizen's responsibility for any and all liability arising from the violation or
infringement of proprietary rights or copyrights and (ii) any libelous or
unlawful material contained within Citizen Web pages, resumes, profiles, or
Postings.
11. TERMINATION OF SERVICE
Talk City may terminate Citizenship and any and all information, communications,
Postings, or Web pages at any time, without notice, for conduct that violates
this Agreement or other policies or guidelines set out by Talk City elsewhere on
the Site. Talk City may terminate Citizenship and delete any and all
information, communications, Postings, or Web pages for online conduct that Talk
City believes is harmful to other Citizens, the business of Talk City, or other
third-party information providers.
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12. CHOICE OF LAW
This Agreement shall be constructed and controlled by the laws of the State of
California, without regard to its conflict of law provisions. Any dispute
arising hereunder will be governed by the laws of the State of California. The
Citizen agrees to personal jurisdiction by the state and federal courts of the
State of California.
13. MERGER CLAUSE
This Agreement, and the content of the referred to URL locations, constitutes
the entire agreement between the parties with respect to the subject matter
contained herein and supersedes any other agreement, proposals and
communications, written or oral, between Talk City representatives and the
Citizen. Talk City may amend this Agreement at any time with notice from Talk
City to the Citizen as published on the Site.
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xxxx://xxx.xxxxxxxx.xxx/xxx
---------------------------
TALK CITY CODE OF CONDUCT, JUNE 1998
------------------------------------
Because our goal in Talk City is to promote communication in an atmosphere of
mutual respect, we have a few city ordinances. Also read our Terms of Service,
and Privacy Policy.
* WE DON'T TOLERATE HARASSMENT.
We welcome people of all ages, races, religions, genders, national origins,
sexual orientations and points of view. We don't tolerate expressions of
bigotry, hatred, harassment or abuse, nor will we tolerate threats of harm to
anyone. Because we encourage discussion and exchange of ideas, we don't allow
defamatory, abusive, tasteless or indecorous statements. For the same reason, we
don't allow sexually explicit material in conversations or nicknames.
We recognize that kids and teens need to have rooms that nurture them, as such
rooms with the designation of "4Kids" have standards that in addition to all
other standards, do not allow sexually suggestive conversations or names. For
the same reason we don't allow sexually suggestive innuendoes or double
entendre. Topics dealing with human sexuality and other similar subjects can be
discussed but in an educational structured and monitored environment.
We invite people to open public rooms and to apply for permanent rooms. Creators
(Operators) of such rooms must follow our City Ordinances in room name, topic,
and content. Operators may use the /kick command only if a participant violates
one of the City Ordinances. Operators should then contact the City Standards
Advisor about the kicked offender (/msg CSA Message).
* WE ALLOW ONLY LEGAL ACTIVITIES.
Although this seems obvious, we don't allow any illegal activities.
Specifically, we won't let you advocate illegal conduct or participate in
illegal or fraudulent schemes. You can't use our chat rooms (channels) to
distribute unauthorized copies of copyrighted material, including photos,
artwork, text, recordings, designs or computer programs. Even though it's not
exactly illegal, we won't let you impersonate someone else, including one of our
trained chat hosts. Please do not use a nickname that would lead people to
believe you are a member of the City Conference Crew, Forum Volunteers or
Community Standards Advisors (that is, including the letters CCC or CSA). People
depend on our hosts as official representatives, and respect the fact that they
have earned their CCCs or CSAs through special training.
With regards to chats; Talk City provides chats on a number of topics, Talk City
staff or volunteer hosts are not giving professional advise of any kind, but are
speaking from their own experience or opinion as helpful for the conducting of a
conversation. Such personnel claim no professional or expertise or authority.
* WE DO OUR BEST TO ENCOURAGE COMFORT AND DISCOURAGE DISRUPTIVE
COMMUNICATION.
Talk City doesn't allow posting or use of computer programs that contain
destructive features, such as viruses, worms, Trojan horses, bots scripts and so
on. We also discourage disruptive conduct: Persistent off-topic comments in a
topic-oriented conference, statements that incite others to violate the City
ordinances, or the physical act of "scrolling" -- repeatedly hitting the Return
key in a conference.
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The use of pop-ups that are excessively long; the use of pop-ups or sound waves
in a repetitive manner such that it disrupts the topic or conversation in a room
is not allowed. Users inviting others to visit web sites with content that would
not comply with Talk City Standards are considered to be in violation of our
standards and subject to action by the CSA and other staff.
* WE DO NOT ALLOW UNAUTHORIZED COMMERCIAL ACTIVITY.
We encourage communication between our members but posting or transmitting of
unauthorized or unsolicited advertising, promotional materials, or any other
forms of solicitation to other users, in Talk City, except in those areas that
maybe designated for such a purpose are not allowed.
* WE ENCOURAGE YOUR PARTICIPATION IN UPHOLDING CITY ORDINANCES.
We want your visit here to be enjoyable. If you have questions about City
Ordinances, or need to report a violation, ask a conference host or a Community
Standards Advisor to help you (someone with CCC or CSA attached to their
nickname). We reserve the right to immediately terminate or suspend access to
our chats for conduct that we believe interferes with other peoples' enjoyment.
When in doubt about appropriate behavior here, remember that Talk City is an
electronic world, but the people here are real. So, just as when you join any
gathering of people, we ask that you treat others with respect and with care.
THANKS FOR JOINING THE TALK CITY COMMUNITY!
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EXHIBIT O. LWP Privacy and User Information Policies as of June, 1998.
---------
xxxx://xxx.xxxxxxxx.xxx/xxx/xxxxxxx.xxxxx
-----------------------------------------
YOUR PRIVACY IN OUR COMMUNITY
-----------------------------
It is Talk City's (and its parent studio, LiveWorld Productions') policy to use
its best efforts to respect the privacy of its on-line visitors. Talk City does
not use cookie technology to obtain any information from its on-line visitors.
Talk City's cookie "lives" on your hard drive and keeps track of our predefined
browser settings: tool bar off and music on, as well as demographic information,
preferred client, and nickname. This allows us to optimize your on-line
experience. We also track the total number of visitors to our site in an
aggregate form (this means you're one of the bunch, your information isn't
singled out) to allow us to update and improve our site, and tell other people
something about the numbers of people who come to xxxxxxxx.xxx. Personally
identifiable information is not extracted in this process.
Talk City only collects personally identifiable data, such as names, addresses,
e-mail addresses, and the like, when voluntarily submitted by a visitor. We will
use the information we collect from our members during the registration process
only to make Talk City better and more responsive to users--to help us customize
the service, and target advertising, sponsorships, and e-mail offers based on
our members' demographics, likes, dislikes, and affiliations. At our discretion
we will make the information about Talk City's users available in aggregate form
to help describe and identify our users to our partners, the industry and public
at large, and our advertisers. We will not share any detailed individual member
information with other companies unless the member explicitly agrees to our
doing so.
POLICIES FOR INDIVIDUALS 16 AND UNDER
No information should be submitted to or posted at Talk City's Web sites by
children 16 years of age or under without their parent's or guardian's consent.
Unless otherwise disclosed during its collection, Talk City does not provide any
personally identifying information, regardless of its source, to any third party
for any purpose whatsoever. Talk City will not post anyone's e-mail address
unless they specifically give their permission, as in the "Make Friends" section
of nickname and Home Page registration. Talk City encourages parents and
guardians to spend time on-line with their children and to participate in the
interactive activities offered on the sites.
INFORMATION FOR PARENTS
We make a special effort to advise kids to get parental permission before
providing information or submitting stuff to put on-line, and we urge parents to
supervise their kids' on-line use. Personally identifiable information may be
collected in response to registrations, Talk City Home Pages, contest entry
forms, subscribing to an e-mail newsletter, etc. This information will be used
by Talk City for internal purposes, and shared in aggregate form with our
partners, advertiser and third parties. We offer an "unsubscribe" option if at
any time they wish to cease receiving e-mails from Talk City. Any changes in
these privacy policies by Talk City will be promptly communicated on this page.
In the Talk City nickname and Home Page registration process, we have two
clearly marked areas. Information entered on the first page will be kept
private. Information on the second page (called Make
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Friends) will be shown on the person's web page and chat profile, so caution
should be taken on what information is entered here.
LINKS TO OTHER SITES
We do our best to make sure that every link we have on this site works and sends
you to a clean and well lit place on the World Wide Web. But because Web sites
can change so quickly, we can't guarantee the content of every link from the
places we link to (get it?). Young people: it's always a good idea to check with
your parents or teacher before heading off to any new sites.
LWP END USER COMMUNICATIONS POLICY
----------------------------------
Talk City will not sell or offer its users' email address and personal
information to any other vendor or company, without the users' express
permission. Talk City will communicate regularly via email and other methods
with its users about changes, additions, offers, and enhancements to the service
that all users will be interested in. We respect our users and endeavor to
communicate with them in a reasonable, consistent and experience enhancing
manner. When we work with partners, we endeavor to coordinate our communications
to Talk City users with these same principles.
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EXHIBIT P. Formats for CIM data, transcripts and other End User work product.
----------
CIM and LWP agree to cooperate, in good faith, to develop and agree to formats
and specifications for data to be provided by LWP to CIM pursuant to SECTION 2.8
(USER DATA; OWNERSHIP, COLLECTION AND DATA MINING) of the Agreement, as soon as
practicable and/or commercially reasonable.
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EXHIBIT Q. LWP and CIM advertising standards as of June, 1998.
---------
LWP ADVERTISING STANDARDS
-------------------------
LiveWorld does not accept advertising that focuses on alcohol, tobacco, drugs,
explicit sex, pornography, profanity or hate or otherwise, in LiveWorld's
reasonable judgment, violates the standards of LiveWorld's services and/or is
not in the best interest of it's audiences, partners or services. LiveWorld
reserves the right to refuse, reject, and/or cancel any advertising orders or
material at any time at the company's discretion.
STANDARD TERMS AND CONDITIONS FOR CIM ADVERTISING
-------------------------------------------------
The following terms and conditions (the "Standard Terms") are deemed to be
incorporated into insertion orders (the "Insertion Order") for CIM Advertising:
1. TERMS OF PAYMENT: Advertiser will be invoiced on the last day of the
contract period set forth on the Insertion Order. Payment shall be made to Xxx
Interactive Media, Inc. (CIM) within thirty (30) days from the date of the
invoice, which date shall be no earlier than the advertisement date specified in
the Insertion Order. Amounts paid after such date shall bear interest at the
rate of one percent (1%) per month (or the highest rate permitted by law, if
less). In the event of any failure by Advertiser to make payment, Advertiser
will be responsible for all reasonable expenses (including attorneys' fees)
incurred by CIM in collecting such amounts.
2. POSITIONING: Except as otherwise expressly provided in the Insertion
Order, positioning of advertisements on any CIM web page is at the sole
discretion of CIM. Advertiser acknowledges that CIM has not made any guarantees
with respect to usage statistics or levels of impressions for any advertisement
except where expressly stated in the Insertion Order. CIM provides Advertiser
with estimated usage only as a courtesy to the Advertiser and shall not be held
liable for any claims relating to said usage statistics. Any information
collected by CIM or its site vendors relating to users or subscribers to CIM's
or Advertiser's site (including without limitation any personally identifiable
transactional data, "clickstream" data or demographic information relating to
users of the site) shall be the property of CIM, and Advertiser shall not obtain
any rights in such information by virtue of this Agreement.
3. ADVERTISING AGENCIES: If Advertiser is using an advertising agency for
the purposes of this Agreement, Advertiser and such agency shall be jointly and
severally liable hereunder. The entity signing this Agreement on behalf of
Advertiser warrants that it is duly authorized and has the full power to bind
Advertiser to this Agreement, and agrees to indemnify and hold CIM and its
affiliated companies harmless from any and all claims, losses, damages or costs
(including reasonable attorneys' fees) arising out of a breach of the foregoing
warranty. Advertiser shall be solely responsible for any commission or other
payment due to any such agency.
70
4. RENEWAL: Except as expressly set forth in the Insertion Order, any
renewal of the Insertion Order and acceptance of any additional advertising
order shall be at CIM's sole discretion. Pricing for any renewal period is
subject to change by CIM from time to time.
5. OWNERSHIP: All advertising material or other content that represents
the creative effort of CIM and/or the utilization of creativity, illustrations,
labor, composition or material furnished by it, is and remains the property of
CIM, including all rights of copyright therein. Advertiser shall not authorize
electronic, photographic or other reproduction, in whole or in part, of any such
material for use in any other medium without CIM's prior written consent.
6. NO ASSIGNMENT OR RESALE OF AD SPACE: Advertiser may not resell, assign
or transfer any of its rights hereunder, and any attempt to resell, assign or
transfer such rights shall result in immediate termination of this contract,
without liability to CIM.
7. DISCLAIMER; LIMITATION OF LIABILITY: CIM MAKES NO WARRANTIES, EXPRESS
OR IMPLIED, AND CIM SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO ADVERTISER OR
ANY OTHER PERSON WITH RESPECT TO ANY LIABILITY, LOSS OR DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFITS OR SPECIAL OR CONSEQUENTIAL DAMAGES, CAUSED
BY OR ARISING OUT OF, EITHER DIRECTLY OR INDIRECTLY, ANY BREACH BY CIM OF ANY OF
THE TERMS OF THIS AGREEMENT, OR IN ANY MANNER ARISING OUT OF OR IN CONNECTION
WITH ANY ADVERTISEMENT OR OTHER MATERIAL DISPLAYED ON CIM'S OR ADVERTISER'S
SITE(S), THE MANNER IN WHICH ANY MATERIAL IS DISPLAYED ON CIM'S OR ADVERTISER'S
SITE(S), OR THE FAILURE TO DISPLAY ANY ADVERTISEMENT OR OTHER MATERIAL ON CIM'S
OR ADVERTISER'S SITE(S). SPECIFICALLY, AND WITHOUT IN ANY WAY LIMITING THE
FOREGOING, CIM DOES NOT REPRESENT OR WARRANT THAT ANY ADVERTISEMENT(S) OR OTHER
MATERIAL WILL BE DISPLAYED ON CIM'S OR ADVERTISER'S SITE WITHOUT INTERRUPTION OR
ERROR. CIM'S LIABILITY HEREUNDER SHALL BE LIMITED TO THE AMOUNT PAID TO IT BY
ADVERTISER UNDER THIS AGREEMENT OR PLACEMENT OF THE ADVERTISEMENT AT A LATER
TIME IN A COMPARABLE POSITION.
8. ADVERTISER REPRESENTATIONS; INDEMNIFICATION: Advertisements are
accepted upon the representation that Advertiser has the rights to publish,
transmit and make copies of the contents of the advertisement, without
infringement of any rights of any third party or violating any applicable laws,
rules or regulations. In consideration of such publication, Advertiser agrees to
indemnify and hold CIM, its affiliated entities and its employees harmless
against any and all expenses and losses of any kind (including reasonable
attorneys' fees and costs) incurred by CIM in connection with any claims of any
kind arising out of publication of the advertisement (including, without
limitation, any claim of trademark or copyright infringement, libel, defamation,
breach of confidentiality, false or deceptive advertising or sales practices)
and/or any material of Advertiser to which users can link through the
advertisement.
9. PROVISION OF ADVERTISING MATERIALS: Advertiser will provide all
materials for the advertisement (including GIF files), in accordance with CIM's
policies in effect from time to time, including (without limitation) the manner
of transmission to CIM and the time prior to
71
publication of the advertisement. CIM shall not be required to publish any
advertisement that is not received in accordance with such policies. All
expenses connected with the delivery to CIM of advertising material or other web
page content of Advertiser and the return of such materials from CIM (if return
is directed in writing by Advertiser) shall be paid by Advertiser. CIM may
dispose of any advertising materials delivered to it unless acceptable prepaid
return arrangements have previously been made.
10. RIGHT TO REJECT ADVERTISEMENT: All contents of advertisements are
subject to CIM's approval. CIM reserves the right to edit, revise, reject or
cancel any advertisement, or reject or cancel any insertion order, space
reservation or position commitment at any time. In addition, CIM shall have the
absolute right to reject any URL link embodied within any advertisement.
11. CANCELLATIONS: Except as otherwise provided in the Insertion Order,
the Insertion Order is non-cancelable by Advertiser.
12. DEFAULT BY ADVERTISER: CIM may terminate this Agreement upon notice to
Advertiser in the event of default by Advertiser in the payment of any invoice
or any other breach of the terms of this Agreement. Upon such termination, all
charges for services completed hereunder shall become immediately due and
payable, including interest on any sums not paid when due, as provided in
paragraph 1 of these Standard Terms. Notwithstanding anything in this Agreement
to the contrary, any termination or cancellation of this Agreement shall not
release Advertiser from its obligation to make payment for all Advertisements
that have been displayed on CIM's site(s) or for other charges as provided
herein incurred prior to the date such termination or cancellation becomes
effective.
13. CHANGE IN LAW: In the event of a material change in law, government
policy or regulation that effectively prevents a party from lawfully performing
any of its obligations under this Agreement, the parties shall negotiate in good
faith to reform or amend this Agreement so that performance may be made
possible. If the parties are unable to reform or amend the Agreement in a
mutually acceptable manner within 30 days of the date of such change, then this
Agreement shall terminate automatically, without any penalty or further
liability to either party.
14. TAXES: In the event that any federal, state or local taxes are imposed
on the display of Advertisement(s) or other material on CIM's or Advertiser's
sites, such taxes shall be assumed and paid by Advertiser.
15. CONSTRUCTION: No conditions other than those set forth in the
Insertion Order or these Standard Terms shall be binding on CIM unless expressly
agreed to in writing by CIM. In the event of any inconsistency between the
Insertion Order and the Standard Terms, the Standard Terms shall control.
16. MISCELLANEOUS: These Standard Terms, together with the Insertion
Order, (i) shall be governed by and construed in accordance with, the laws of
the State of Delaware, without giving effect to principles of conflicts of law;
(ii) may be amended only by written agreement executed by an authorized
representative of each party; and (iii) constitute the complete and entire
expression of the
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agreement between the parties, and shall supersede any and all other agreements,
whether written or oral, between the parties.
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EXHIBIT R. Competitors for whom the parties are restricted from selling
---------
advertising to for the CIM Talk City Service, the CIM OnNow Service
and the CIM Talk City Joint Content Areas
RESTRICTED LWP COMPETITORS FOR THE CIM TALK CITY SERVICE AND CIM TALK CITY JOINT
--------------------------------------------------------------------------------
CONTENT
-------
AREAS
-----
AOL
GeoCities
The Xxxxx.xxx
InfoSeek WBS
Lycos Tripod
Who Where's Angelfire
Xzoom
Yahoo Chat
RESTRICTED LWP COMPETITORS FOR THE CIM ONNOW SERVICE
----------------------------------------------------
Net Guide Live Events Listings
Xxxx.Xxx
Yahoo Net Events
RESTRICTED CIM COMPETITORS FOR THE CIM TALK CITY SERVICE, THE CIM ONNOW SERVICE
--------------------------------------------------------------------------------
AND CIM TALK CITY JOINT CONTENT AREAS
-------------------------------------
Alta Vista
AOL-Digital Cities
CitySearch
Xxxx.Xxx
Excite
Geocities
Infoseek
Knight Ridder (Real Cities, Just Go)
Lycos/Tripod
Microsoft (Start, Sidewalk, etc.)
Mining Co.
New York Today
Web Crawler
Yahoo (Metros)
Zip2
Any entity substantially engaged in the creation of local city sites or the
publishing of locally oriented information on the Internet or any competing
local city site or local network of city sites, or any site substantially
devoted to the provision of locally oriented online content or services which
directly compete with CIM, including but not limited to sites and services owned
or operated by television stations, radio stations, newspapers and other
periodicals focusing on local content.
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CIM reserves the right to add to and amend this EXHIBIT R, subject to
mutual agreement by the parties, which agreement shall not be unreasonably
withheld.
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EXHIBIT S. Illustrative table for calculating revenue, revenue splits and
---------
inventory splits.
These tables illustrate the methodology for calculating revenue sharing and
sales inventory splits. For reference, the general Advertising Revenue splitting
principle was that sixty-five percent (65%) of any Advertising Revenue is kept
by the selling party while thirty-five percent (35%) is turned over to the non-
selling party or parties. In addition, in situations like those described in
Scenarios 3 and 4 below, where Other Partners (e.g. the source of traffic to a
particular Web site or service) are allocated Advertising Inventory based on
either a content or traffic contribution, LWP shall be responsible for
collecting and auditing the Advertising Revenue split owed by those Other
Partners to CIM.
SCENARIO 1 (PER SECTIONS 4.3.2(i) AND 4.3.3(i)). CIM End Users to CIM-linked
-----------------------------------------------
Talk City Joint Content Areas.
INVENTORY SPLIT
Distribution Content Infrastructure Total
CIM [*]% [*]% [*]% [*]%
LWP [*]% [*]% [*]% [*]%
Other Partner [*]% [*]% [*]% [*]%
[*]%
REVENUE SPLIT
Gross Revenue %
CIM ([*]%x[*]%) + ([*]%x[*]%) [*]%
LWP ([*]%x.[*]%) + ([*]%x[*]%) [*]%
Other Partner N/A
100%
SCENARIO 2 (PER SECTIONS 4.3.2(ii) AND 4.3.3(ii)). CIM End Users to the CIM Talk
--------------------------------------------------
City Service and the CIM OnNow Service.
INVENTORY SPLIT
Distribution Content Infrastructure Total
CIM [*]% [*]% [*]% [*]%
LWP [*]% [*]% [*]% [*]%
Other Partner [*]% [*]% [*]% 0%
100.000%
REVENUE SPLIT
Gross Revenue %
CIM ([*]%x[*]%) + ([*]%x[*]%) [*]%
LWP ([*]%x.[*]%) + ([*]%x[*]%) [*]%
Other Partner N/A
100.000%
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* Certain information on this page has been
omitted and filed with the Commission.
Confidental treatment has been requested with
respect to the omitted portions.
SCENARIO 3 (PER SECTIONS 4.3.2(iii) AND 4.3.3(iii)). End Users from CIM Sites to
-----------------------------------------------
Other Partner Joint Content Areas. This model assumes that LWP has agreed to
give fifty percent (50%) of its fifty-percent (50%) overall allocation of
Advertising Inventory to the Other Partner, giving such Other Partner twenty-
five percent (25%) of the overall Advertising Inventory on such Other Partner
Joint Content Areas.
INVENTORY SPLIT
Distribution Content Infrastructure Total
CIM [*]% [*]% [*]% [*]%
LWP [*]% [*]% [*]% [*]%
Other Content Partner [*]% [*]% [*]% [*]%
100.000%
REVENUE SPLIT
Gross Revenue %
CIM ([*]%x[*]%) + ([*]%x[*]%) [*]%
LWP ([*]%x[*]%) + ([*]%x.[*]%) + ([*]%x[*]%) [*]%
-[([*]%x[*]%x[*]%) + ([*]%x[*]%)]
Other Partner ([*]%x[*]%) + ([*]%x[*]%) + ([*]%x[*]%x[*]%) [*]%
100.000%
SCENARIO 4 (PER SECTIONS 4.3.2(iv) AND 4.3.3(iv)). End Users from non-CIM Sites
--------------------------------------------------
accessing General CIM Talk City Joint Content Areas. This model assumes that LWP
has agreed to give an Other Partner a fifty percent (50%) overall allocation of
Advertising Inventory on such General CIM Talk City Joint Content Areas.
INVENTORY SPLIT
Distribution Content Infrastructure Total
CIM [*]% [*]% [*]% [*]%
LWP [*]% [*]% [*]% [*]%
Other Partner [*]% [*]% [*]% [*]%
100.000%
REVENUE SPLIT
Gross Revenue %
CIM ([*]%x[*]%) + ([*]%x[*]%) + ([*]%x[*]%x[*]%) [*]%
LWP ([*]%x[*]%) + ([*]%x.[*]%) + ([*]%x[*]%) [*]%
-[([*]%x[*]%x[*]%) + ([*]%x[*]%)]
Other Partner ([*]%x[*]%) + ([*]%x[*]%) [*]%
100.000%
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* Certain information on this page has been
omitted and filed with the Commission.
Confidental treatment has been requested with
respect to the omitted portions.
EXHIBIT T. CIM Transaction Revenue Sharing to LWP on CIM E-commerce Sites
---------
CIM and LWP agree that CIM shall have the right, at a future date, to list here
the e-commerce sites and the transactions revenue split and payment terms it
will provide to LWP for transaction revenue on CIM E-Commerce sites that results
from links from the LWP Services to CIM E-Commerce Sites.
CIM shall only split transaction revenue to LWP for traffic driven to the sites
listed below from the general Talk City Service, the general OnNow Service and
LWP Other Partner versions of those services, and shall not split transaction
revenue to LWP for traffic driven to the sites listed below from the CIM Talk
City Services, the CIM OnNow Service or the CIM-linked Talk City Joint Content
Areas.
CIM E-Commerce Site Transaction Revenue Splits Payment Terms
78
