1
Exhibit 10.23
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
@HOME NETWORK
@HOME SHOPPING TENANT AGREEMENT
THIS @HOME SHOPPING GUIDE AGREEMENT (this "AGREEMENT") is made between At
Home Corporation ("@HOME") and N2K, Inc. ("TENANT") effective as of the date of
signature by @Home below ("EFFECTIVE DATE") regarding linking the @Home site
with N2K's online music retail store, Music Boulevard ("MUSIC BOULEVARD") and
other N2K music genre sites.
1. @Home Shopping Guide. @Home agrees to include Tenant in its Shopping
interface ( THE "@HOME SHOPPING GUIDE" or its functional equivalent), a service
of the @HOME NETWORK, and in any other section on the @Home site where Music
Products are sold, "Music Products" means pre-recorded music distributed in a
tangible medium, e.g. physical tapes and CDs, and, by way of example, does not
include digital distribution of music, under the terms set out on ATTACHMENT I
hereto.
2. Tenant Services. Without limiting any rights @Home may have under applicable
laws, Tenant agrees that @Home may promote, transport (i.e. transmit and serve),
cache on proxy servers, replicate on replication servers and reproduce on
related storage devices operated by @Home and its cable affiliates Tenant
content and services offered by Tenant (the "CONTENT") that is made available to
@Home under this Agreement or otherwise made generally available by Tenant or
third parties for transport over the Internet (including modifications made
solely for the purposes listed above), and Tenant agrees to permit the @Home
guidebar (as created by @Home, and modified from time to time, which is
currently an index to different parts of the @Home site and appears on the left
side of the screen) to appear during shopping sessions by @Home subscriber.
Tenant will retain complete discretion to set "TTL" (time to live) variables for
the Content. Tenant warrants to @Home that Tenant has all right and authority
necessary in order to make the Content available in compliance with applicable
laws. Tenant and @Home will promote the Content within the @Home Shopping Guide
and @Home site in accordance with the @Home Shopping Guide Content Guidelines
set out on ATTACHMENT II hereto (as amended from time to time). In addition,
Tenant agrees to adapt (or permit the adaptation by @Home of) the Content for
compatibility with reasonable technology solutions adopted by @Home.
3. Business Marks. @Home and Tenant each will have the right, without separate
charge, to use in promoting the Content and the @Home Shopping Guide the other's
business name and any tradenames, trademarks and service marks (collectively,
"MARKS") that @Home may adopt for use with the @Home Shopping Guide and @Home
site and that Tenant may adopt for use with the Content. However, any such use
must be identical to use by the party that owns the Xxxx, or as approved by the
owner in writing in advance, or otherwise in accordance with any Xxxx usage
guidelines communicated by the owner. The owner retains all goodwill and all
other rights thereto, and the other party obtains no goodwill or any other
rights thereto as a result of the use of the owner's Marks.
4. Revenue Sharing. Tenant agrees to make revenue sharing payments to @Home
solely with respect to Music Products (e.g. excluding clothing, videotapes, or
other non-pre-recorded music products) as a percentage of Net Revenue as set
forth in table below:
Total @Home Payments Accrued Percentage of Net Revenue for all subsequent months
---------------------------- ---------------------------------------------------
in a Calendar Month
-------------------
$[****] [****]%
$[****] [****]%
$[****] [****]%
Tenant agrees to make revenue sharing payments with respect to Net Revenue
received from non Music Products including (by means of example only) clothing,
videotapes, or computer accessories sold by Tenant to @Home subscribers that
equal [****]% of Net Profits received by Tenant for these items. "NET PROFITS"
is defined as the selling price of the item (excluding shipping, handling,
database processing fees, credit card validation fees, and, if applicable, pick
and packing fees, warehousing fees, and database and music licensing fees) minus
the wholesale
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cost N2K paid for the item. In the event N2K does not pay for the item, @Home
shall receive [****]% of Net Revenue received by N2K for these items.
For these purposes, "NET REVENUE" means actual revenues received by Tenant
(excluding shipping, handling, database processing fees, taxes, and credit card
validation fees) from @Home subscribers as a result of @Home subscribers
entering Content directly from any link in the @Home site or entry via direct
typing or bookmarking of the Tenant Content URL, xxx.xxxxxxxxxxxxxx.xxx, but
excluding access to Tenant site via third party promotional links (e.g. @Home
user links from MTV promotion on MTV site or from other web site promotions to
Music Boulevard) during the term of the Agreement. In the event Tenant develops
the technical capability to identify @Home customers when they purchase from any
of the Tenant's music genre sites (e.g. Classical Insites, Rocktropolis, etc.),
N2K will immediately notify @Home that it has such technical capability.
Thereafter, N2K will include this form of access in this revenue sharing
arrangement.
In the event that Tenant enters into an agreement with a third party to make
payments with respect to product transactions greater than the above terms,
Partner agrees to promptly advise @Home and to enter into good faith
negotiations with @Home regarding an appropriate adjustment to compensation set
out in this SECTION 4. In the event that the parties are unable to negotiate in
good faith a mutually agreed upon adjustment, @Home may, at its discretion,
terminate the Agreement.
5. Revenue Sharing Payments and Reports; Auditing.
5.1 Payments and Reports. Within fifteen (15) days following the end of each
calendar month during the term of this Agreement, Tenant shall provide to @Home
a written statement, in such detail specifying:
(a) with respect to each product sold to @Home subscribers: the number of
units of each product sold to @Home subscribers during the preceding
quarter, the product names of each product sold (e.g. artist & album
name) the actual revenues (including shipping and handling) received with
respect to such product, and the deductions from actual revenues received
which determine the Net Revenue (or Net profit if applicable) with
respect to such product for the quarter, and
(b) with respect to all products sold to @Home subscribers: the
aggregate Net Revenue for all products for such quarter and
calculation of the amount due to @Home in accordance with Section 4
above.
Tenant shall make payments to @Home with respect to Net Revenue received in the
quarter immediately preceding such payment on a quarterly basis, to be delivered
to @Home by the fifteenth (15) day of the month following the close of the
quarter, provided that, for any quarter, payments may be accrued until such time
as total royalties equal or exceed [****].
5.2 Tenant agrees that @Home may have its auditors reasonably acceptable to
Tenant audit Tenant's books and records related to payments under this Agreement
only with respect to the proceeding twenty four (24) month period not more than
once per year, during business hours and upon ten (10) business days written
notice. Tenant agrees to reimburse @Home for the reasonable costs of the audit
if the audit discloses an underpayment of ten percent (10%) or more.
6. Term and Termination. This Agreement will begin on the Effective Date and
continue for a period of one year from the Effective Date, unless otherwise
terminated by the parties pursuant to this Section 6. The agreement shall
automatically renew for an additional one (1) year term unless either party
gives notice of termination no less than thirty (30) days prior to the
expiration of the current term.
6.1 Termination for Breach. Either party may terminate this Agreement at any
time upon thirty (30) days written notice of material breach by the other party,
unless the breaching party remedies the breach within such notice period. For
these purposes, Tenant's failure to maintain an Active Web Presence (as defined
in ATTACHMENT I hereof) shall be treated as a material breach.
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6.2 Automatic Termination. This Agreement will terminate automatically in the
event (a) @Home no longer offers shopping services in the Tenant's specific
Category or Categories (as set out on ATTACHMENT I hereof) within the @Home site
to @Home subscribers or (b) Tenant no longer makes its Content available to
Internet users.
Other than for compensation due, neither @Home nor Tenant will have any
liability to the other merely as a result of termination of this Agreement in
accordance with this SECTION 6. However, upon termination or expiration, both
parties rights to use Usage Data internally or otherwise pursuant to SECTION 10
hereof, will be limited to use in a form aggregated with other Usage Data in
such a way that such Usage Data cannot be distinguished or separated.
7. LIMITATION OF LIABILITY. @HOME, @HOME'S CABLE OPERATOR AFFILIATES ("CABLE
AFFILIATES") AND TENANT WILL NOT BE LIABLE TO ONE ANOTHER OR ANY THIRD PARTY,
UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL
OR INDIRECT DAMAGES OF ANY KIND, SUFFERED BY OR OTHERWISE COMPENSABLE TO THE
OTHER, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, WHETHER OR NOT
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ANY PARTY HAVE ANY
LIABILITY OF ANY NATURE OR AMOUNT WHATSOEVER TO THE OTHER OR ANY THIRD PARTY
ARISING OUT OF, UNDER OR RELATING TO ANY FAILURE OF THE DISTRIBUTION OF THE
CONTENT OR ANY PART THEREOF OR ANY SOFTWARE PROGRAM, SOFTWARE OR WEB SITE LINK
OR LINK MECHANISM, OR OTHER MATERIAL OR ITEMS THROUGH THE @HOME NETWORK OR
OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY SUCH FAILURE OF DISTRIBUTION
RESULTING FROM CABLE AFFILIATES' ELECTION NOT TO DISTRIBUTE MATERIAL OR ITEMS OR
DUE TO TECHNICAL DIFFICULTIES). The limitations in this SECTION 7 shall not
apply to compensation due or obligations set out in SECTIONS 8 AND 9.
8. Proprietary Rights Generally. @Home and Tenant each retain any and all right,
title and interest in and to all intellectual property of any nature (including
patents, rights under patent applications and patents issuing on such
applications, trade secrets, copyrights, trademarks and other business names
(including goodwill in such marks), among others), subject to the rights granted
by the parties in SECTION 3 (concerning rights with respect to business marks)
and SECTION 10 (concerning rights with respect to usage information) of this
Agreement or as may be provided in the Attachments to this Agreement. @Home and
Tenant each agree to reproduce, and agree not to remove or obscure proprietary
rights legends (such as copyright notices, among others) or license terms and
conditions included with any intellectual property deliverable provided in
connection with this Agreement. Tenant agrees to ensure that the Content and its
Marks and their use, reproduction and distribution (alone and not in combination
with other material or items) do not infringe the intellectual property rights
of any third party. If, as a result of any collaboration by @Home or Tenant
under this Agreement, they become joint owners of intellectual property by
operation of law, then they will cooperate, subject to prudent business
judgment, to establish, register, maintain and protect such intellectual
property.
9. Indemnification. Each party will indemnify the other party and its customers
and affiliates for, and hold them harmless from, any loss, expense (including
reasonable attorney's fees and court costs), damage or liability arising out of
any claim, demand or suit resulting from a breach of any of the warranties of
the indemnifying party in SECTION 8. As a condition to indemnification (a) the
indemnified party will promptly inform the indemnifying party in writing of any
such claim, demand or suit and the indemnifying party will fully cooperate in
the defense thereof; and (b) the indemnified party will not agree to the
settlement of any such claim, demand or suit prior to a final judgment thereon
without the consent of the indemnifying party, which consent shall not be
unreasonably withheld.
10. Usage Data.
10.1 @Home will own any and all of its user information and usage data,
including but not limited to, specific user information, obtained by @Home from
computer system servers operated by or for @Home by third parties or otherwise
from the operation of the @Home Network (collectively, the "@HOME USAGE DATA").
@Home Usage Data includes, but is not limited to, Tenant's Web server page
delivery data captured and maintained by @Home on its @Home Network proxy server
usage logs ("PAGE DELIVERY DATA"). Tenant will own any and all specific user and
other usage information obtained by Tenant from computer system servers operated
by or for Tenant by third parties or otherwise from Tenant's operation of Web
sites (collectively, the "TENANT USAGE DATA"). Tenant Usage Data includes, but
is not limited to, Tenant Usage Data obtained from subscribers obtaining access
to Tenant's Web site via the @Home Network ("SUBSCRIBER USAGE DATA").
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10.2 @Home agrees to pursue reasonable efforts to collect and provide Tenant
on a reasonable frequency but not less often than quarterly, subject to @Home's
technical capabilities, @Home Usage Data in the following forms:
(a) Aggregate usage data on the Tenant's Category (as set out on
Attachment I hereof) as compared to aggregate usage data in all
Categories offered by the @Home Shopping Guide.
(b) Number of clicks-through to Tenant's site from @Home Shopping Guide
links.
(c) Absolute number of page impressions of all cached, replicated or
multicasted Tenant pages and events. In the event @Home does not
provide absolute number of page impressions on a reasonable
frequency, but no less than quarterly, Tenant can cease all caching,
replication, and multicasting of content until such time @Home
provides this data.
@Home agrees that Tenant may use data provided to it by @Home under this
Section 10 for internal purposes as long as @Home Usage Data is not sold to any
third party, and that such data may be distributed by Tenant for advertising and
merchandising purposes only if it is aggregated together with other data in such
a way that Subscriber Usage Data or Page Delivery Data (including but not
limited to individual @Home Network subscribers), as the case may be, cannot be
distinguished or segregated. Tenant agrees, in all events, not to distribute or
make available @Home Network Subscriber Usage Data and Page Delivery Data or
subscriber IP addresses for any purpose.
10.3 Tenant agrees to pursue reasonable efforts to collect and provide @Home
on a reasonable frequency but not less often than quarterly, subject to Tenant's
technical capabilities, Subscriber Usage Data to @Home in the following forms:
a) Aggregate usage data on the most popular pages and products
clicked-through by @Home subscribers on Tenant's website(s) and most
popular categories of products viewed and most popular categories
purchased by @Home subscribers.
(b) Identification of products purchased by @Home subscribers and
amounts paid for such products accounting for shipping and handling
(in accordance with SECTION 5).
(c) Tenant will make user registration data available to @Home for all
new users who purchase in the Tenant site, provided the user has not
opted out of allowing Tenant to share user data with third parties.
Tenant agrees that @Home may use Subscriber Usage Data provided by Tenant for
any internal purpose as long as Subscriber Usage Data is not sold to any third
party, and that @Home may distribute Subscriber Usage Data provided by Tenant
for advertising and merchandising purposes only if it is aggregated together
with other @Home Usage Data in a way that Subscriber Usage Data (including but
not limited to individual Content users) cannot be distinguished or segregated.
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11.1 Confidential Information. "Confidential Information" will mean all
confidential and proprietary information, other than commercially available
content provided electronically or by some other means by one party to the other
party, which the disclosing party identifies in writing as confidential before
or within thirty (30) days after disclosure to the receiving party
("Confidential Information"), but specifically excluding Subscriber Usage Data
and Page Delivery Data in a form permitted for distribution in accordance with
SECTION 10.2 AND 10.3 above.
11.2 Nondisclosure. Each party agrees (a) to hold the other party's
Confidential Information in strict confidence, (b) not to disclose such
Confidential Information to any third party, and (c) not to use the other
party's Confidential Information for any purpose other than to further this
Agreement. Each party may disclose the other party's Confidential Information to
its responsible employees with a bona fide need to know such information, but
only to the extent necessary to carry out this Agreement. Each party agrees to
instruct all such employees not to disclose such Confidential Information to
third parties, including consultants, without the prior written permission of
the disclosing party.
11.3 Exceptions. Notwithstanding the foregoing, Confidential Information will
not include information which:
(a) Is now, or hereafter becomes, through no act or failure to act on
the part of the receiving party, generally known or available to the public;
(b) Was acquired by the receiving party before receiving such
information from the disclosing party and without restriction as to use or
disclosure;
(c) Is hereafter rightfully furnished to the receiving party by a third
party, without restriction as to use or disclosure;
(d) Is information which the receiving party can document was
independently developed by the receiving party without use of the disclosing
party's Confidential Information;
(e) Is required to be disclosed by law, provided that the receiving
party uses reasonable efforts to give the disclosing party reasonable notice of
such required disclosure; or
(f) Is disclosed with the prior written consent of the disclosing party.
11.4 Return. Upon the disclosing party's request, the receiving party will
promptly return to the disclosing party all tangible items containing or
consisting of the disclosing party's Confidential Information and all copies
thereof.
11.5 Injunctive Relief. Each party acknowledges that all of the disclosing
party's Confidential Information is owned solely by the disclosing party (or its
licensors) and that the unauthorized disclosure or use of such Confidential
Information would cause irreparable harm and significant injury to the
disclosing party, the degree of which may be difficult to ascertain.
Accordingly, each party agrees that the disclosing party will have the right to
obtain an immediate injunction enjoining any breach of this Agreement, as well
as the right to pursue any and all other rights and remedies available at law or
in equity in the event of such a breach.
12. Warranties and Disclaimers. @Home will not remove or obscure any warranties
and disclaimers from the Content. @HOME DOES NOT MAKE ANY WARRANTIES CONCERNING
THE @HOME NETWORK OR THE @HOME SHOPPING GUIDE, EXPRESS, IMPLIED OR OTHERWISE.
@HOME SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE @HOME NETWORK,
THE @HOME SHOPPING GUIDE, RELATED SERVICES, AND ANY AND ALL CONTENT AND TOOLS
AND RELATED DELIVERABLES PROVIDED BY @HOME IN CONNECTION WITH THIS AGREEMENT,
ALL OF WHICH ARE PROVIDED BY @HOME "AS IS". SIMILARLY, TENANT SPECIFICALLY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT WITH RESPECT TO TOOLS
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AND RELATED DELIVERABLES PROVIDED BY TENANT TO @HOME IN CONNECTION WITH THIS
AGREEMENT, ALL OF WHICH ARE PROVIDED BY TENANT "AS IS".
13. General Provisions
13.1 Governing Law and Venue. This Agreement and any disputes arising under,
in connection with, or relating to this Agreement will be governed by the laws
of the State of California, excluding its conflicts of law rules. The state and
federal courts in Santa Xxxxx County, California will have exclusive venue and
jurisdiction for such disputes, and the parties hereby submit to personal
jurisdiction in such courts. The prevailing party in any such dispute will be
entitled to recover costs of suit (including the reasonable fees of attorneys
and other professionals).
13.2 Compliance with Laws. Subject to the express provisions of this
paragraph, each party agrees to comply with applicable laws in connection with
this Agreement, including but not limited to the development and publication of
the Content. Tenant agrees, in particular, to comply with all laws concerning
obscenity, defamation, infringement, rights of privacy, harassment and export
controls, among others, and to ensure that the use, reproduction and
distribution of the Content in and of itself, does not violate such laws or
related legal rights of third parties.
13.3 Customer Service Calls. Tenant and @Home acknowledge that each of them
may receive customer service telephone calls directed to the other. @Home agrees
to forward to Tenant such calls directed to the Content. Tenant agrees to
forward to @Home such calls directed to @Home Network services generally.
13.4 Assignment. Neither party may assign this Agreement or any rights or
obligations hereunder to any third party without the other party's prior written
consent, which consent shall not be withheld unreasonably; provided, however,
that either party may assign its rights and obligations hereunder to a third
party without the other party's consent in connection with: (a) such party's
equity financing, (b) such party's public offering of its securities, (c) the
sale of all or substantially all of such party's business (whether by asset
sale, stock sale or merger), or (d) the assignment of such rights and
obligations to a majority-owned subsidiary of such party or such party's parent
corporation. Any assignment without consent attempted by either party
notwithstanding the foregoing prohibition will be deemed to be a material breach
of this Agreement.
13.5 Relationship of Parties. Neither this Agreement nor the parties'
business relationship established hereunder will be construed as a partnership,
joint venture or agency relationship or as granting a franchise. The parties
warrant to one another that they have consulted legal counsel in reviewing
and/or negotiating this Agreement and have concluded that no business plan or
franchise fee is conveyed or provided for in this Agreement or otherwise by the
relationship established by this Agreement or by its performance.
13.6 Public Announcement. Neither party will disclose, or release any public
announcement about, the parties' Content relationship under this Agreement
without the mutual consent of both parties.
13.7 Waiver. No waiver of any breach of any provision of this Agreement will
be considered to be a waiver of any prior, concurrent or later breach of the
same provisions or different provisions, and will not be effective unless made
in writing and signed by an officer of the waiving party.
13.8 Amendments. This Agreement may only be amended by a written agreement
signed by officers of both parties, except than any authorized representatives
of the parties, who may or may not be officers, may amend by signed written
agreement the Addenda to this Agreement.
13.9 Survival. SECTIONS 5, 7, 9 AND 11 of this Agreement, along with any
other provisions which by their nature extend beyond termination of this
Agreement shall survive termination.
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13.10 Force Majeure. Neither party will have liability to other party in
connection with or for any reason relating to this Agreement as a result of any
failure of performance by or on behalf of either party as a result of an event
of "force majeure". For purposes of this Agreement, "force majeure" means an
event beyond either party's reasonable control whether or not foreseeable and
includes, in any case, the following events that may prevent or significantly
hinder either party from performing this Agreement or acting in connection with
this Agreement: armed conflicts, famine, floods, Acts of God, labor strikes or
shortages, governmental decree or regulation, court order, severe weather, fire,
earthquake, failure of suppliers, unavailability of communications transport
facilities and breakdowns in communications transport facilities.
13.11 @Home Cable Operator Affiliates. Tenant acknowledges and agrees that
Cable Affiliates will have the right under certain circumstances to elect not to
distribute the Content and promotional material and that, pursuant to its
agreement with such Cable Affiliates, @Home may be subject to restrictions
regarding the promotion or distribution of such Content and promotional
materials. Tenant agrees not to bring any action or threaten to bring any action
against the Cable Affiliates or @Home in connection with any such election,
restriction or failure to distribute.
13.12 Entire Agreement. This Agreement, including its Attachments,
constitutes the entire understanding of @Home and Tenant with respect to its
subject matter and supersedes all prior agreements between @Home and Tenant.
Accepted for At Home Corporation by: Accepted for N2K, Inc. by:
Name Xxxxxxx Xxxxxx Name Xxxxx X. Xxxxx
------------------------- ------------------------
Signature /s/ Xxxxxxx Xxxxxx Signature /s/ Xxxxx X. Xxxxx
---------------------- ----------------------
Title Vice President, Media Div. Title Pres. & CEO
-------------------------- -------------------------
Date June 5, 1997 Date June 5, 1997
--------------------------- --------------------------
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ATTACHMENT I
TERMS OF @HOME SHOPPING TENANCY WITH MUSIC BOULEVARD
1. @Home Shopping Guide. The @Home Shopping Guide is a shopping service
provided by @Home to its subscribers. The Shopping Guide will feature a
general Shopping Page, as well as shopping interfaces in particular
categories ("ANCHOR TENANT CATEGORIES") established from time to time by
@Home.
2. Anchor Tenants. "ANCHOR TENANTS" will be featured in Anchor Tenant
Categories. As of the Effective Date, Music Boulevard will be an Anchor
Tenant in the "Music and Event Tickets" or "Music" Category (whichever one
is used by @Home). @Home agrees that during the term of this agreement it
will not enter into any other agreement establishing any other Anchor
Tenant in the "Music and Event Tickets" or "Music" Category that is
primarily engaged in the online sale of Music Products other than Music
Boulevard (by way of example only, this does not preclude @Home from
entering into an Anchor Tenant agreement in the "Music" Category with
another party to sell downloaded digital music.)
3. Responsibilities of @Home. @Home is responsible for the following
activities for the duration of this agreement to its Anchor Tenant.
a) @Home will promote Music Boulevard within its Anchor Tenant Category
at a level greater than other third party tenants that are primarily
engaged in the sale of Music Products within the Anchor Tenant
Category (this Anchor Tenancy does not include the digital
distribution of music at this time). This promotion will follow the
guidelines in Attachment II. The Music Boulevard promotion will be
displayed when an @Home user enters its Anchor Tenant Category.
b) @Home will create a promotion such that when a user passes their
cursor over the Music button on the general Shopping page, a
mutually agreed upon promotional message from Music Boulevard shall
display on the interface. Tenant acknowledges and agrees that this
is subject to change if and when @Home re-designs the Shopping
service.
c) @Home will link to the appropriate Music Boulevard Album Description
Page or Discography Page when @Home displays a "Buy" link for Music
Products in @Home-controlled pages if Music Boulevard carries the
Music Product featured on the page. In the event Music Boulevard
does not carry this Music Product, @Home may link to another music
store and notify Music Boulevard in a reasonable time frame. If any
items from the @Home-controlled pages are archived, they shall be
archived with the functional "Buy" link. @Home reserves the right to
create editorial content that may or may not include reference to
Music Boulevard.
d) @Home and Music Boulevard will use a mutually agreed upon process to
identify @Home users for the Music Boulevard pages and link them to
the appropriate product pages.
e) @Home will use Music Boulevard as the exclusive online Music
Products retailer on @Home-controlled areas of the TuneIn
application (by way of contrasting example only, the DJ "Buy This
CD" button is controlled by the DJ, and not by @Home and therefore
would not be covered by this exclusivity clause).
f) @Home has the ability to link to and promote mutually agreed upon
content features and events from the Classical Insites, Jazz Central
Station, and Xxxxxxxxxxxx X0X genre sites. @Home may also include
N2K content directly in the @Home site in accordance with N2K's
ability to provide such content. @Home will include the N2K content
site brand and link back to the site when it directly includes
content in the @Home site. Each party will keep its respective
advertising revenues associated with the non-exclusive features and
events described in this Section 3F. Notwithstanding the previous
sentence, beginning six months after the Effective Date, either
party may choose to re-negotiate this advertising revenue sharing
arrangement and/or @Home may choose, in its discretion, not to
feature or link to non-exclusive N2K content features or events.
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4. Responsibilities of Music Boulevard. N2K is responsible for the following
activities for the duration of this agreement to its Anchor Tenant.
a) Music Boulevard will co-brand every page in the Music Boulevard
store with a mutually agreed upon design. This design shall include
a link back to the @Home site. The co-branded site will appear
whenever an @Home user types in the Music Boulevard URL (e.g.
xxx.xxxxxxxxxxxxxx.xxx) or if they enter via any link from the @Home
site.
b) For all featured end-cap titles in the Music Boulevard store, N2K
will create 80 kbps RealAudio (or other mutually agreed upon
high-quality streaming format) sample files for at least 3 tracks on
each of these titles. N2K will also create 80 kbps RealAudio (or
other mutually agreed upon high-quality streaming format) sample
files for all tracks and titles for which it creates low bandwidth
samples beginning 30 days after the Effective Date. All
high-bandwidth audio files will be available to all @Home users and
shall be labeled, "@Home Broadband Clip" or similar mutually agreed
upon text.
c) N2K will create and make available 80 kbps RealAudio (or other
mutually agreed upon high-quality streaming format) files for all
featured titles with audio clips for its Classical Insites, Jazz
Central Station, & Rocktropolis sites provided @Home links directly
to the feature titles. These clips will be labeled as in Section 4B
above.
d) N2K will inform @Home of live and pre-recorded music events that it
would like to promote to @Home customers. In the event @Home decides
to promote any of these events, N2K will create and make available
an 80 kbps RealAudio (or other mutually agreed upon high-quality
streaming format) audio stream of the event for @Home customers. In
the event N2K believes that the number of simultaneous @Home
listeners will be greater than 50 for a particular event, N2K shall
notify @Home and , at @Home's discretion, @Home may permit N2K to
provide the event to a maximum of 50 simultaneous @Home customers or
@Home may choose to use its own RealAudio servers to multicast or
unicast the event to all @Home users (in this case, N2K will provide
a single encoded source stream to the @Home server(s) which will
then replicate the stream to @Home customers).
e) For every year of the Agreement, N2K will create 5 exclusive
mutually agreed upon online music events for @Home customers only.
At each event, @Home customers will have near-CD quality (80 kbps or
better) audio available and the event will not be available to
non-@Home internet users or online service users. N2K and @Home will
mutually agree upon the event and the media and technology used.
@Home will market each event to its subscribers. In the event N2K
believes that the number of simultaneous @Home listeners will be
greater than 50 for a particular event, N2K shall notify @Home and,
at @Home's discretion, @Home may permit N2K to provide the event to
a maximum of 50 simultaneous @Home customers or @Home may choose to
use its own RealAudio servers to multicast or unicast the event to
all @Home users (in this case, N2K will provide a single encoded
source stream to the @Home server(s) which will then replicate the
stream to @Home customers). In the event either party charges fees
or generates ad revenue from these events, such party will pay the
other [****]% of the net fees and [****]% of the net advertising
revenues (i.e., advertising revenues net of advertising sales
commissions, fees net of transaction processing, etc.).
5. Active Web Presence Music Boulevard agrees to maintain an Active Web Presence
during the term of this Agreement. "Active Web Presence" means the maintenance
of a site on the World Wide Web that offers at least the level of performance
and functionality offered on the Effective Date (including breadth and depth of
product offerings) and that, to the extent commercially reasonable, continues to
integrate the latest and most common features of functionality as comparable
websites, including (without limitation and by way of example only): back-end
security, appropriate transactional mechanisms, customer service, user interface
enhancements, and navigation tools.
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ATTACHMENT II
@HOME SHOPPING GUIDE GUIDELINES
[@HOME NETWORK LOGO]
Anchor Tenant Shopping Space Specs
(last revised 5/6/97 - RK)
Please Note: These Specifications and any screen shots are subject to change at
@Home's discretion.
Overview
GENERAL DESCRIPTION: Anchor tenants in the @Home Shopping Guide will be
promoted via a large ANCHOR AREA on the category page.
In addition, the Anchor Tenant will receive a short text
description, the TEXT PROMO, that will appear on the
bottom of the main Shopping screen when a user passes
the cursor over the Anchor Tenant Category.
The mock-up screen shot below points out the TEXT PROMO
on the main Shopping screen and the one below is the
Anchor tenant Category page which shows the ANCHOR AREA
promotion mechanism.
(NOT shown to scale)
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[INTERNET HOME PAGE]
TEXT PROMO
[INTERNET HOME PAGE]
XXXXXX XXXX
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00
Xxx XXXXXX XXXX is designed and created by the anchor
tenant under the following specifications.
ANCHOR AREA Specifications
CONTENT GUIDELINES: The Anchor Tenant may create and brand this area however
they like as long as the following content is included:
-- Anchor Tenant Logo (hot-linked to your site)
-- Direct link to a multimedia feature if agreed
upon (e.g. near-CD quality featured samples)
-- Brief description of your store or products
If possible, please include some navigational links to
areas within the Anchor Tenant site.
The general purpose of this area is to act as a
promotion tool for your site. It is in the best
interests of @Home and the Anchor Tenant that it does
not look like a simple banner advertisement. Please call
Xxxxxx Xxxxxxxxx (415-569-5120) if you desire further
input.
FORMAT: Standard JPEG & possibly text links.
One or more GIFs - optimized to Macintosh system
palette.
SIZE: Total Area: 345 pixels width x 90 pixels height
(height may be doubled for a limited time period at the
discretion of @Home)
IMAGE MAP AREA Top left x - 239, y - 6
Bottom right x - 324, y - 81
Rect. size 85w x 75h
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STYLE: White background only requirement
TEXT: Any text, any font, any size incorporated into the
image that fits into the above size requirements.
FILE WEIGHT: 50K maximum file weight
REFRESH SCHEDULE: TBD with Xxxxxx Xxxxxxxxx.
FILE TRANSFER (FTP): xxx.xxxx.xxx/xxxxxxxx/.xxxxxxxxxxx
Use the "Put" command to place the files into this
directory. Please include the name of your site in the
file names.
Once the files are sent, please notify Xxxxxx Xxxxxxxxx
at xxxx@xxxx.xxx or (000) 000-0000. Please include the
exact name of each file, including case sensitivity,
with your message.
@Home will review each document and respond with any
changes that may be required to meet design
specifications.
TEXT PROMO Specifications
CONTENT GUIDELINES: This is a short text phrase which should include the
Anchor Tenant name and is used to entice people into
the category. (e.g. "Check out the best home products
here at XYZ")
Please call Xxxxxx Xxxxxxxxx (415-569-5120) if you
desire further input.
FORMAT: Standard Text
SIZE: 50 characters maximum.
STYLE: @Home will use its font and appropriate font size
REFRESH SCHEDULE: Once per week maximum, e-mailed on a business day
(Monday through Friday) to Xxxxxx Xxxxxxxxx.
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FILE TRANSFER: Please e-mail Xxxxxx Xxxxxxxxx at xxxx@xxxx.xxx with
the Text Promo in quotes. Please include the contact
person for questions and the time period you would like
it displayed (in accordance to the refresh schedule
above). Please call Xxxxxx to verify the file has been
received and meets specifications.
@Home will review each document and respond with any
changes that may be required to meet design
specifications.
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