EXHIBIT 10.58
CONFIDENTIAL
AGREEMENT FOR CONSULTING SERVICES
THIS AGREEMENT FOR CONSULTING SERVICES is made and entered into as of
February 22, 2003 (the "Effective Date"), by and between America Online, Inc., a
Delaware corporation, with offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000
(hereinafter referred to as "AOL"), and America Online Latin America, Inc., a
Delaware corporation, with principal offices at Xxxxx 000, 0000 X. Xxxxxxx
Xxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Consultant")
(each a "Party" and collectively the "Parties").
AOL, operates the America Online(R) brand service, an interactive
computer communications, information and transactions service. Consultant is
familiar with the America Online(R) brand service. AOL desires to engage the
services of Consultant and Consultant desires to accept such engagement upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, AOL and Consultant hereby agree as follows:
1. SERVICES AND SCOPE OF WORK
1.1 SERVICES. Consultant agrees to provide to AOL consulting
services ("Consulting Services") as they are described on
Schedule 1 attached hereto as Exhibit A and on such schedules
as are executed from time to time by both Parties to this
Agreement (the "Schedules"). Each Schedule shall be
consecutively numbered and annexed hereto. Consulting Services
shall be provided in accordance with the provisions of this
Agreement and the applicable Schedule.
1.2 SCOPE OF WORK. Each Schedule shall contain a description of
the tasks to be performed by Consultant, the deliverables and
documentation, if any, to be produced by Consultant
(collectively, "Deliverables"), a schedule of performance, a
schedule of payments and a statement of Consultant's
then-current rates, if applicable.
1.3 PERFORMANCE OF SERVICES. Consultant has the right to (i)
control and direct the means, manner and method by which the
Consulting Services are performed, and (ii) perform the
Consulting Services at any place or location and at such time
as Consultant may reasonably determine. Unless otherwise
agreed to by the Parties in writing or on a Schedule,
Consultant shall (i) observe the working hours, working rules
and polices of AOL while working on AOL's premises, and (ii)
furnish all equipment and materials used to perform the
Consulting Services, including but not limited to telephone
lines, personal computers and modems.
1.4 OTHER WORK. Consultant shall ensure that the Programmers are
dedicated solely to providing the Consulting Services
hereunder. In the event Consultant wishes to perform work of a
similar nature to the Consulting Services (i.e., programming
Hispanic content or area) during the term of this Agreement
for any Interactive Service based in the U.S., Consultant
shall give AOL ninety (90) days prior written notice thereof
and AOL shall have the right to terminate this agreement upon
thirty (30) days written days notice thereof. As used herein,
an Interactive Service is an entity offering one or more of
the following: (i) online or Internet connectivity services
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(e.g., an online service or Internet service provider); (ii)
an interactive site or service featuring a broad selection of
aggregated third party interactive content (or navigation
thereto) covering a broad range of subjects and targeted at a
broad audience (e.g., a search and directory service or
portal) and/or marketing a broad selection of products and/or
services across numerous "vertical" interactive commerce
categories (e.g., an online mall or multiple-category
e-commerce site); or (iii) communications software capable of
serving as the principal means through which a user creates,
sends or receives electronic mail or real time online
messages.
1.5 COMPLIANCE WITH APPLICABLE LAW. Except with respect to actions
taken per the express instructions of AOL, Consultant shall
ensure that Consultant complies with all applicable local,
state and federal law and AOL's then-current Terms of Service
in performing the Consulting Services.
2. CONSULTANT PERSONNEL
2.1 CONSULTANT PROJECT MANAGER. The Parties shall mutually agree
on which Programmer will act as project manager for Consultant
(the "Consultant Project Manager"), whose duties shall be to
act as liaison between AOL and Consultant.
2.2 INDEPENDENT CONTRACTOR; NO AGENCY. Consultant is an
independent contractor. Consultant shall not be deemed for any
purpose to be an employee of AOL. AOL shall not be responsible
to Consultant or any governing body for any payroll-related
taxes related to the performance of the services, including
but not limited to, withholding or other taxes related to
federal or state income tax, social security benefits or
unemployment compensation. This Agreement shall not be
interpreted or construed to provide that either Party is an
agent, representative or partner of the other Party. This
Agreement shall not be interpreted or construed to provide
that either Party shall have any right, power or authority to
enter into any agreement for or on behalf of, or incur any
obligation or liability on behalf of, or to otherwise bind,
the other Party. This Agreement shall not be interpreted or
construed to create an employment relationship, an
association, agency, joint venture or partnership between the
Parties or to impose any liability attributable to such a
relationship upon either Party.
2.3 CONSULTANT'S EMPLOYEES AND ASSISTANTS. From time to time,
Consultant may, subject to the terms and conditions set forth
in this Agreement, engage employees, independent contractors,
consultants, volunteer assistants or other persons or entities
(collectively, "Assistants") to aid Consultant in performing
Consultant's duties under this Agreement. AOL has no
relationship with or to such Assistants and such Assistants
are not employees, agents, consultants, representatives,
assistants or independent contractors of AOL. Consultant shall
be fully and solely responsible for the supervision and
payment of such Assistants and for all work performed by such
Assistants and any third party subcontractors approved by AOL
as provided in this Agreement.
3. PROJECT MANAGEMENT
3.1 AOL PROJECT MANAGER. AOL shall designate a project manager
for each Schedule (the "AOL Project Manager") who shall act
as a liaison between AOL and Consultant.
3.2 [intentionally deleted]
3.3 ACCOUNTS. Consultant shall be given account(s) for the America
Online(R) brand service for the exclusive purpose of enabling
it and its agents to perform Consultant's duties under this
Agreement. The account(s) shall be of the type determined by
AOL to be necessary for Consultant to perform its duties
hereunder. Consultant shall be responsible for any premium
charges, transaction charges, communication surcharges or
other charges incurred by any such account(s), other than
AOL's standard monthly subscription charge. Consultant shall
be responsible for the actions taken under or through its
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account(s), which actions shall be subject to AOL's
then-applicable Terms of Service. Upon termination of this
Agreement, the account(s), and any associated usage credits
and related screen names or similar rights, shall
automatically terminate. AOL shall have no liability for loss
of data or content related to termination of any account.
3.4 SOFTWARE TOOLS. AOL shall provide each Programmer with such
proprietary software tools (each a "Tool") as AOL determines
are reasonably necessary for such Programmer to perform
Consultant's obligations hereunder , which tools shall be made
available to the Programmers solely in order for Consultant to
perform its duties hereunder. Consultant shall be granted a
nonexclusive license to use any such Tool, which license shall
be subject to: (i) Consultant's compliance with all rules and
regulations relating to use of the Tools, as published from
time to time by AOL, (ii) AOL's right to withdraw or modify
such license at any time (and provide a replacement Tool, if
AOL determines such replacement tool is reasonably necessary
for such Programmer to perform Consultant's obligations
hereunder and a replacement AOL proprietary software tool
exists and is provided to AOL programmers), and (iii)
Consultant's express recognition that AOL provides all Tools
on an "as is" basis, without warranties of any kind. Subject
to the two preceding sentences, AOL shall provide the
following tools to the Programmers: VPD (Visual Publish
Designer), Rainman, Grinder, Shark, Shark Lite, Community
Center tool (for publishing), Poll tool (to cover all "voting
tools" including quizzes, surveys, ratings, polls, etc.), URC,
ASPP, Webstats, Community Centers Analysis Pages, Tracer X,
Telescope and other mutually agreed upon publishing tools. To
the extent the foregoing tools have not been rolled out to AOL
programmers, such tools shall be provided to relevant
Programmers when they are made available to AOL programmers.
Notwithstanding the foregoing, to the extent a Programmer is
unable to fulfill a specific Consultant obligation hereunder
as a result of AOL's not providing a Tool which is necessary
for the fulfillment of such obligation, Consultant shall be
relieved of its obligation to perform such obligation until
such time as the necessary Tool is provided by AOL.
3.5 REPORTS. Consultant will have access to systems that will
produce reports specifying the prior month's aggregate usage
and impressions with respect to AOL Latino.
4. FEES, EXPENSES AND TAXES
4.1 FEES. Each Schedule shall set forth the fee due for the
Consulting Services to be provided pursuant to the Schedule
and Consultant agrees to invoice AOL as set forth in the
Schedule.
4.2 EXPENSES. Expenses will be reimbursed as set forth in each
applicable Schedule.
4.3 [intentionally deleted]
4.4 MAXIMUM DOLLAR AMOUNT. Notwithstanding anything to the
contrary contained herein, AOL shall not be liable for any
charges and/or expenses under any Schedule for work in excess
of the Maximum Dollar Amount specified on such Schedule.
4.5 [intentionally deleted]
4.6 TAXES. Consultant shall be responsible for determining the
applicability of any sales, use, excise, or similar taxes
which may be applicable to the performance of the Consulting
Services, if any. Consultant shall clearly and separately
state any applicable taxes on Consultant's invoice to AOL for
corresponding Consulting Services. AOL shall pay applicable
taxes on the invoice or, in lieu of the payment of any such
taxes, AOL may provide Consultant with a certificate
acceptable to the taxing authorities exempting AOL from
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payment of these taxes. Consultant shall pay all taxes
collected from AOL to the appropriate taxing authority.
Consultant shall indemnify AOL for any penalties and/or
interest which may accrue as a result of Consultant's failure
to fulfill its obligations under this Section 4.6.
5. ACCEPTANCE OF SERVICES
All Consulting Services and Deliverables delivered by the Consultant
pursuant to the Agreement and the attached Schedules shall be subject
to acceptance by AOL as follows. In the event AOL is not reasonably
satisfied with the work performed hereunder, AOL will notify Consultant
in writing (email notice to suffice) stating the reason(s) AOL is not
satisfied and Consultant will address AOL's concerns and re-deliver the
work to AOL within three (3) business days of receiving such notice or
as otherwise reasonably requested. Such process will be repeated until
the work has been accepted by AOL; provided that, if AOL is not
reasonably satisfied and does not accept the same work three (3) times,
in addition to any other rights AOL may have hereunder, AOL may
terminate this Agreement upon thirty (30) days written notice.
6. TERM AND TERMINATION
6.1 TERM. This Agreement shall commence on the Effective Date and
shall continue in full force and effect thereafter unless and
until it is terminated or expires in accordance with the
provisions of this Agreement or any Schedule.
6.2 TERMINATION FOR BREACH. Either Party may terminate this
Agreement at any time in the event of a material breach by the
other Party which remains uncured after thirty (30) days
written notice thereof (or such shorter period as may be
specified in this Agreement or in any applicable Schedule).
6.3 Notwithstanding the other remedies in this Section 6, in the
event that Consultant (a) ceases to do business in the normal
course or (b) fails to produce work as required hereunder in
material breach of this Agreement and Consultant is unable or
will be unable to cure within thirty (30) days, or (c) fails
to produce the Consultant Services in a timely manner as
required under this agreement or any Schedule in material
breach of this Agreement and Consultant is unable or will be
unable to cure within thirty (30) days, AOL may elect in its
sole discretion and in addition to any other remedies
available under this Agreement, require Consultant to use all
commercially reasonable efforts to facilitate an arrangement
with one or more of its Programmers and EFE to enable AOL to
pay such Programmers directly for ongoing consultants services
(or EFE for the Content) or AOL may, at its sole discretion,
employ the services of any other consultants or third parties
to perform the consulting services contemplated under this
Agreement.
6.4 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared
insolvent or bankrupt, (iii) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary or
involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
6.5 AOL RIGHTS AND PAYMENT UPON TERMINATION. If either Party
terminates the Agreement, AOL agrees to pay Consultant for a
pro rata portion of the fee for worked performed hereunder.
7. TERMS AND CONDITIONS. The terms and conditions set forth on Exhibit B
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attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto, each acting under due and
proper authority, have executed this Agreement as of the date first written
above.
AMERICA ONLINE, INC. CONSULTANT
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXXXX XXXXX
------------------------- ------------------------------------
Print Name: XXXXX X. XXXXXXX Print Name: XXXXXXX XXXXX
----------------- -----------------------------
Title: EVP, PROGRAMMING Title: EXECUTIVE VICE PRESIDENT AND
---------------------- CHIEF FINANCIAL OFFICER
---------------------------------
Date: 2/28/03 Date: FEBRUARY 28, 2003
----------------------- ----------------------------------
EIN or SSN:
---------------------
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EXHIBIT A
SCHEDULE NO. 1 DATED FEBRUARY 22, 2003 TO
AGREEMENT FOR CONSULTING SERVICES
BETWEEN
AMERICA ONLINE, INC. AND AMERICA ONLINE LATIN AMERICA, INC.
DATED AS OF FEBRUARY 22, 2003 (THE "AGREEMENT")
SCOPE OF WORK
1. Detailed description of services to be rendered by Consultant:
GENERAL. Consultant shall program AOL's multi-topic Content and
services interactive area for the US Hispanic audience currently
available at AOL Keyword: Latino on the America Online(R) brand
proprietary service (the "AOL Latino") under the direction of
AOL-designated personnel ("AOL Managers") in the manner set forth in
this Schedule 1.
Hosting: AOL Latino shall be hosted by AOL and all costs associated
therewith born by AOL.
CONTENT. Consultant will provide access until December 31, 2003 to
EFE's news services in English and Spanish and content feeds in Spanish
and English targeted specifically to Hispanics in the United States
(the "EFE Content"). Consultant will use commercially reasonable
efforts to secure access to the EFE Content from January 1, 2004
through February 21, 2004 (the "Extension Period"). In the event
Consultant is unable to secure access to the EFE Content on similar
material terms as provided for in its existing agreement with EFE,
Consultant shall notify AOL thereof. If the EFE Content can be secured
at an increased price (i.e., increase over current price), AOL shall
have the option of paying the increase in the price and Consultant
shall enter into the agreement with EFE for the Extension Period. If
AOL chooses not to exercise such option (or if the EFE Content can only
be secured on worse material non-price terms), Consultant shall be
relieved of its obligation to provide access to the EFE Content. If
Consultant does not secure access to the EFE Content for the Extension
Period, the fee payable to Consultant by AOL for the Extension Period
shall be reduced by the amount of thirteen thousand two hundred
ninety-two dollars ($13,292).
To the extent any links are established by the Programmers between AOL
Latino and any interactive site of Consultant or its Subsidiaries
("AOLA Website") and any Content within an AOLA Website is used by the
Programmers within AOL Latino in connection with such links, in each
case as determined by Consultant (AOL may suggest such links but the
final determination whether to link shall be made by Consultant in its
sole discretion), Consultant hereby grants AOL a worldwide license for
so long as such links are maintained to distribute, display, and
promote such AOLA Websites and Content through AOL Latino.
STAFFING. Consultant shall be responsible for, and shall provide the
personnel (the "Programmers") to perform, the programming functions set
forth in Attachment 1 ("Programming Functions"). The Parties shall
agree on the initial staff and AOL will have the right to approve or
disapprove reasonably any additions to such staff, including without
limitation, temporary staff to replace staff members on extended leave
(i.e., greater than one week). AOL shall respond promptly to any staff
approval request made by Consultant. The Programmers shall be employees
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of Consultant and Consultant will manage all human relations aspects of
such relationships. In the event any of the Programmers take an
extended leave (e.g., greater than one week), Consultant shall replace
such Programmer. The Programmers shall report to, follow the direction
of the Consultant Project Manager, who shall take direction from the
AOL Manager in all programming matters and in the performance of all
Programming Functions. The Consultant shall ensure that the Programmers
follow the programming requirements set forth in Attachment 2
("Programming Requirements"). Any material failure to follow the
Programming Requirements shall constitute a material breach of
contract.
2. Deliverables and documentation to be produced by Consultant:
2A: Programming in compliance with this Schedule 1
3. Time for Performance/Delivery
3A: Ongoing
4. Acceptance testing criteria for each Deliverable:
Applicable as described below _____ Not Applicable __x___
5. Payments:
(a) FEE. AOL shall pay Consultant sixty-two thousand five hundred
dollars ($62,500) per month in arrears.
(b) EXPENSES
Consultant shall not be entitled to the reimbursement of any expenses;
except as follows: in the event travel and training expenses exceed eighteen
thousand dollars ($18,000), AOL shall reimburse such expenses so long as (i) all
travel and training expenses are pre-approved by AOL (even those which do not
exceed $18,000), (ii) such expenses shall be limited to reasonable out-of-pocket
expenses necessarily and actually incurred by the Consultant in the performance
of its services hereunder, (iii) the expenses have been detailed on a form
reasonably acceptable to AOL and submitted to the appropriate AOL Project
Manager for review and approval; and (iv) if requested by AOL, the Consultant
submits supporting documentation (e.g., receipts, invoices) in addition to the
approved expense form. Any travel expenses shall comply with AOL's travel
policy, a copy of which has been provided to Consultant, and AOL may, at AOL's
sole discretion, require Consultant to make travel arrangements through an
AOL-approved travel agency. AOL shall not be obligated to reimburse more than
one hundred thousand dollars ($100,000) in such expenses.
(c) PAYMENT SCHEDULE
All fees and expenses due shall be invoiced by Consultant in arrears:
[X] Monthly
[ ] Upon Completion
[ ] Other (describe: ________________________)
[ ] Progress Payments as follows:
(d) MAXIMUM DOLLAR AMOUNT
The maximum dollar amount payable to Consultant for all fees and
expenses under this Schedule: eight hundred fifty thousand dollars ($850,000)
plus up to three million dollars ($3,000,000) in revenue share under Paragraph 9
of this Schedule 1.
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6. CONSULTANT PROJECT MANAGER: Name: Xxxxxx Xxxxxx
Fax #: 000-000-0000
Phone #: 000-000-0000
E-mail: XXXXxxxxx@xxx.xxx
7. AOL PROJECT MANAGER: Name: Xxxxx Xxxxxxxxx
Fax #: 000-000-0000
Phone #: 000-000-0000
E-Mail: XXXXXXXXXXXXXX@XXX.XXX
AOL will notify Consultant of any change in AOL Project Manager
8. TERM OF THIS SCHEDULE: February 22, 2003-February 21, 2004
9. ADDITIONAL TERMS AND CONDITIONS:
ADVERTISING. AOL shall have the exclusive right to license or sell
advertisements, promotions, links, pointers and similar services or
rights on AOL Latino ("AOL Advertisements") and to retain one hundred
percent (100%) of all Advertising Revenues derived therefrom other than
the revenue share due to Consultant as set forth below. Consultant
shall be entitled to a revenue share on all Advertising Revenues as
follows:
A. Other than for deals where Consultant is the Business
Development Lead (as defined below) and receives the revenue
share set forth in Paragraph 9B below, AOL shall be entitled
to one hundred percent (100%) of Advertising Revenues until
AOL receives three million two hundred fifty thousand dollars
($3,250,000) in Advertising Revenues ("Advertising
Threshold"). Once the Advertising Threshold is met, but
subject to the revenue share cap set forth in Paragraph 9C,
Consultant shall be entitled to twenty percent (20%), of all
Advertising Revenues which exceed the Advertising Threshold.
As used herein, (i) Advertising Revenues" shall mean aggregate
amounts collected plus the fair market value of any other
compensation received (such as barter advertising) by AOL or
AOL's agents, as the case may be, arising from the license or
sale of AOL Advertisements, less applicable Advertising Sales
Commissions, and (ii) "Advertising Sales Commissions" shall
mean actual amounts paid as commission to third party agencies
in connection with sale of the AOL Advertisement.
B. Subject to the revenue share cap set forth in Paragraph 9C,
Consultant shall be entitled to thirty-five percent (35%) of
all Advertising Revenues generated by deals in which
Consultant is the Business Development Lead. For avoidance of
doubt, the sixty-five percent (65%) revenue share received by
AOL pursuant to this Paragraph 9B shall be counted toward the
Advertising Threshold.
C. REVENUE SHARE CAP. Once Consultant receives one million
dollars ($1,000,000) in revenue share, whether earned under
Paragraph 9A or 9B above, Consultant will no longer be
entitled to a revenue share under Paragraph 9A above. Once
Consultant receives three million dollars ($3,000,000) in
revenue share, whether earned under Paragraphs 9A or 9B above,
Consultant will no longer be entitled to a revenue share under
Paragraph 9B, but the Parties will discuss whether there
should be a further revenue share.
D. Business Development Lead.
(i) Consultant may provide AOL with a written prospect list of
potential advertisers ("Prospect List"), from time to time
(which list may be provided by email), with specific brand(s)
to be targeted for Advertisements on AOL Latino. AOL will have
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the right to approve the Prospect List and only those entities
approved by AOL will be on the approved list (the "Target
List"). AOL shall use commercially reasonable efforts to
respond to all requests from Consultant to include a potential
advertiser/brand(s) on the Target list within five (5)
business days; if AOL does not respond within such timeframe,
such request shall be deemed not approved and such
advertiser/brand(s) shall not be placed on the Target List
(unless later approved to by AOL). If a potential
advertiser/brand(s) is not approved by AOL and therefore is
not placed on the Target List, Consultant may resubmit the
same potential advertiser/brand(s) for inclusion on the Target
List after a period of three (3) months after the last time
Consultant submitted the potential advertiser/brand(s) for
possible inclusion on the Target List.
(ii) in the event the Parties mutually agree or in the event
that AOL is not in active discussions to close a deal with a
potential advertiser on the Target List for the specified
brand(s) ninety (90) days after being placed on the Target
List, such potential advertiser/brand(s) shall be deleted from
the Target List.
(iii) while a potential advertiser/brand(s) is on the Target
List, AOL will not approach such advertiser about advertising
the specific brand identified on the Target List on AOL Latino
unless otherwise mutually agreed by the parties.
(iv) Consultant will be responsible for developing the
business relationship with entities on the Target List and
will use commercially reasonable efforts to secure a
preliminary advertising commitment from each such entity.
Consultant shall report to AOL on a bi-weekly basis to update
AOL on the status of such relationships and shall use
commercially reasonable efforts to assist the AOL-designated
sales lead to close the deal with each such entity; provided
that to the extent that there are no advertisers on the Target
List, Consultant shall have no obligation to report to AOL on
a bi-weekly basis. As used herein, "Business Development Lead"
shall mean that Consultant has complied with the foregoing
requirements of this clause (iv); provided that, failure to
provide more than one bi-weekly report in any three month
timeframe shall not prevent Consultant from earning a revenue
share hereunder.
(v) AOL shall have no obligation to enter into any agreement
with any potential advertiser referred to it by Consultant;
provided that, (a) AOL shall negotiate in good faith with such
potential advertiser to reach agreement with respect to the
specified brand, and (b) in the event AOL enters into an
agreement with such Advertiser for the specified brand within
three (3) months after such advertiser is removed from the
Target List under clause (ii) above, Consultant shall be
entitled to a revenue share of 35% under Paragraph 9B in
accordance with the terms of this Section 9; provided that
Consultant shall only be obligated to use commercially
reasonable efforts to assist AOL in closing such an agreement
if so requested by AOL.
STANDARDS OF BUSINESS CONDUCT. Consultant shall ensure the Programmers
adhere to AOL's standards of business conduct which are provided to
Consultant in writing.
CONFIDENTIALITY PROVISIONS. Consultant will ensure that the Programmers
and all employees that provide services to AOL pursuant to this
Schedule 1 sign a non-disclosure and confidentiality agreement in a
form reasonably satisfactory to AOL which enforce the confidentiality
provisions of this Agreement.
TERMINATION. AOL may terminate this Agreement and Schedule any time on
or after June 21, 2003 upon two (2) months prior written notice thereof
to Consultant (i.e., the earliest termination date is August 20, 2003).
In such event, AOL will pay Consultant a termination fee of one hundred
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twenty-five thousand dollars ($125,000) within thirty (30) days after
the termination date. Consultant may assume that AOL does not plan to
enter into negotiations to renew this Schedule if AOL does not notify
Consultant of such desire at least sixty (60) days prior to the
expiration of the term of this Schedule.
AMERICA ONLINE, INC. CONSULTANT
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXXXX XXXXX
------------------------- ---------------------------------------
Print Name: XXXXX X. XXXXXXX Print Name: XXXXXXX XXXXX
----------------- ------------------------------
Title: EVP, PROGRAMMING Title: EXECUTIVE VICE PRESIDENT AND CHIEF
---------------------- FINANCIAL OFFICER
------------------------------------
Date: 2/28/03 Date: FEBRUARY 28, 2003
----------------------- -------------------------------------
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Attachment 1
Programming Functions
AOL Latino currently consists of a series of content and community areas aimed
at the Hispanic population living in the US and servicing AOL US members. The
vast majority of AOL Latino content areas are published in Spanish with limited
English-language content. The Spanish areas of AOL Latino are intended to cover
general topics of interest, while the English areas of Latino are programmed
focusing on topics of interest specific to the Latin community. AOL Latino
programming will be complementary to the AOL service's English language
programming.
Primary focus of AOL Latino will be on:
News, Sports, Entertainment, Music, Features, Latino Welcome Screens & Community
areas
Consultant shall be responsible for continuing to publish AOL Latino under
similar production parameters currently in place, but following the direction of
the AOL Manager. Under direction of the AOL Manager, production processes and
workflow will be modified to enhance productivity.
AOL Latino programming strategy will be set and modified as necessary by the AOL
in keeping with the business goals of AOL's for the US Hispanic initiative.
Programming strategy, including standards, editorial calendar, look, feel, depth
of programming, and frequency of updates for programming areas will be
determined by the AOL and will evolve in keeping with the general AOL Brand
programming standards, expectations and processes.
Consultant understands and acknowledges that AOL will want, from time to time,
to change the content and direction of AOL Latino. AOL understands and
acknowledges that should AOL wish to significantly increase the amount of areas
or screens produced by Consultant, then AOL and Consultant will agree to a
revised staffing plan and related increase in costs. In the event the average
amount of work to be performed by Consultant hereunder substantially increases
over the average amount of work performed under the Parties' prior Interactive
Services Agreement, effective as of February 22, 2001, AOL will not require
Consultant to perform such additional work hereunder without a mutually agreed
upon revised staffing plan and a related increase in fee.
Overall Roles & Responsibilities
To the extent that AOL does not provide the direction set forth in the next
paragraph (entitled "AOL"), third party Content, the tools in Section 3.4 which
are necessary for the Programmers to perform Consultant's obligations hereunder,
studio support consisting of production and photo editing, access to special
areas (i.e., Keyword and search requests, Plus number requests and Magic number
requests) and/or access to updated HTML and Rainman code (as provided to AOL
programmers) necessary for the Programmers to perform Consultant's obligations
hereunder and such failure to provide such direction, items or access prevents
the performance of specific Programmer functions related to such direction,
items or access, Consultant will not be in breach of this Agreement for failure
to perform such functions. AOL shall provide the Programmers with copies of
third party content agreements for AOL Latino and any deal summaries prepared by
AOL in connection therewith. In the event the Programmers have questions about
the scope of the licenses or any restrictions set forth in such agreements, such
Programmers or another representative of Consultant may contact an AOL employee
for clarification. Any questions submitted to an AOL employee in accordance with
the foregoing shall be responded to within a reasonable timeframe and Consultant
shall be under no obligation to utilize any Content in question until such
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response has been received. Consultant may rely on responses provided by AOL
employees under this paragraph in fulfilling its obligations hereunder In the
event such contact becomes material in terms of frequency, the Parties shall
discuss in good faith alternative approaches.
AOL (PROVIDED FOR CONTEXT ONLY; DOES NOT CONSTITUTE AOL OBLIGATION)
- Establishes programming strategy
- Identifies and executes content deals
- Oversees & directs Consultant and the Programmers
CONSULTANT
- Works with Brand programming direction to create successful USH programming
- Utilizes strong U. S. Hispanic ("USH") market knowledge & subject matter
expertise to create culturally relevant programming in Spanish
- Works closely with AOL's Entertainment, Music, News, Sports, Community
programmers to create programming that enhances AOL's overall content
offering
- Provides Spanish language writing and speaking expertise
- Follows AOL standards and best practices
- Design and production person
o Matrixed into the Studio, reports in to Brand programming lead
o Works closely with Consultant's programmers to create graphic design
that supports and enhance the programming area
STAFF ROLES
AOL MANAGER (PROVIDED FOR CONTEXT ONLY; DOES NOT CONSTITUTE AOL OBLIGATION)
- Employed by AOL-Directs overall programming strategy for AOL Latino
- Determines product needs & works with Acquisition Marketing to address
- Identifies potential content providers and works with Business Development
to bring online with AOL
- Works with AOL vertical leads, region and AOLTW properties to enhance
overall product and programming offers
- Collaborates with IM, Biz Strategy to create solid revenue opportunities
- Strong US Hispanic market knowledge
- Fluency in written and spoken Spanish
- Strong English writing and speaking capability
CONTENT MANAGER
- Employed by Consultant
- Reports to AOL Manager
- Works closely with Brand programming to identify content trends &
programming possibilities
- Oversees daily Spanish-language programming in keeping with Brand direction
- Works with Brand and programmers to solidify a clear editorial voice for
AOL Latino
- Manages and coaches junior programmers to ensure quality editorial
- Primary contact for AOL vertical programmers for integration, joint
programming efforts in features
- Responsible for the success of day to day programming implementation
- Responsible for welcome screen and AOL Latino Main scripts
- Fluency in written and spoken Spanish
- Strong writing and speaking ability in English
COMMUNITY MANAGER
- Employed by Consultant
- Reports to AOL Manager -Matrixed to AOL Community team & Content Manager
- Creates best Community experience possible on AOL for US Hispanics for
Spanish dominants, Bilingual Hispanics, and English dominants with Latino
interests
- Identifies and responds to member trends
- Works with AOL & Latino programming teams to provide strong and
complementary community areas within programming for USH community
- Works very closely with the AOL community team
- Enforces AOL Community best practices & AOL service standards
- Oversees ACI Team Coordinator and helps manage chats
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- Produces and maintains special community polls & packages
- Works with Self expression team to identify Self Expression icons that
reflect USH market needs
- Fluency in written and spoken Spanish -Strong writing & speaking ability in
English
PROGRAMMING MANAGER: MUSIC AND ENTERTAINMENT
- Employed by Consultant
- Reports to Content Manager
- Matrixed to AOL Music and AOL Entertainment
- Responsible for providing outstanding USH Music and Entertainment
experience in keeping with the best practices of AOL, requires solid
knowledge of USH market
- Works closely with programmers in AOL Music & Entertainment to stay abreast
of current trends & their programming direction
- Works closely with AOL Music to leverage current assets and create new
artist possibilities via AOL Music that would meet USH audience needs
- Works closely with AOL Entertainment (Movies, Celebs, etc) to leverage
existing content, repurpose into Spanish major corporate initiatives (ex:
HP, LOTR)
- Creates Music & Entertainment areas with major partner content
- Creates standing franchise areas
- Works with Community Manager to ensure effective integration of community
and to respond to trends in Community
- Fluency in written and spoken Spanish
- Strong writing & speaking ability in English
PROGRAMMING MANAGER: NEWS & SPORTS
- Employed by Consultant-Reports to Content Manager
- Works closely with AOL News to provide complementary programming that
enhances AOLs overall news offering and meets needs of USH audience
- Requires solid knowledge of USH market
- Follows trends in USH news, able to plan for upcoming calendar driven news
events
- Works closely with AOL Sports to provide complementary Sports programming
targeting USH audience
- Works closely with partners to create compelling Sports and News
programming
- Creates Sports & News areas with major partner content
- Works closely with community manager to build and learn from Latino sports
& news communities
- Identifies & creates evergreen news and sports areas that will be able to
be mobilized quickly
- Fluency in written and spoken Spanish
- Strong writing & speaking ability in English
PROGRAMMING MANAGER, FEATURES & OPS
- Employed by Consultant
- Reports to Content Manager
- Responsible for project managing all major feature packages in tandem with
AOL Studio producer (ex: Latin Grammy's)
- Works with Programming leads for Music/Entertainment & News/Sports to
create & program stable of template based, evergreen feature packages
- Works with Programming leads & Community manager to create complementary
polls, YSIs, and other programming
- Creates feature areas with major partner content
- Ensures that Programming Operations run smoothly:
o Request magic numbers, works with Sales planning as necessary
o Works closely with AOL Search editors to ensure that Keywords appear in
Search results
o Weekly reporting on What's Hot and What's NOT in Latino
- Requires strong familiarity with AOL organization, processes & technical
systems, ability to multi-task and work well remotely
- Fluency in written and spoken Spanish
- Strong writing & speaking ability in English
GRAPHIC DESIGNER/BUILD IMD
- Employed by Consultant
- Reports into AOL Manager
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- Matrixed to AOL Studio Graphic Design team
- Dedicated AOL Latino graphic design resource
- Responsible for working with Latino programming team to create graphic
designs that:
o Create a unique yet consistent look and feel throughout AOL Latino
o Enhance AOL member experience
o Uphold AOL Brand graphic design standards
o Works closely with AOL Brand, AOL Studio for design and Studio design
approval
- Works with Producer (AOL Studio) and Programming team to determine schedule
for Design & production of packages
- As necessary design and build HTML, flash areas
- Maximizes technical skills to ensure smooth implementation of programming
areas including ASPP 2.0 compliance
Note: Content and subject matter of job responsibilities may change, but the
general job responsibilities will stay the same.
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Attachment 2
Programming Requirements
In programming AOL Latino, Consultant will, and will ensure the Programmers
will, adhere to the following programming requirements:
1) Adhering to legal guidelines & standards for photos, partner content,
intellectual copyright, & promotions as communicated by AOL Legal to the
Consultant Project Manager.
2) Upholding brand standards in editorial content and quality as established by
AOL Brand Senior Management, AOL Edit Desk and AOL Programming Director and
communicated to the Consultant Project Manager.
3) Upholding brand standards in related to integrated ads, contextual commerce
opportunities as established by AOL Editorial Standards group and communicated
to the Consultant Project Manager.
4) Upholding brand standards in design, production as established by AOL Design,
UI, and Studio performance & accessibility teams and communicated to the
Consultant Project Manager.
5) Maintenance of community and programming areas in accordance with AOL
Community standards, AOL Terms of Service and AOL Integrity Assurance team as
communicated to the Consultant Project Manager.
6) Meeting reasonable deadlines as established for any project--from very minor
to major.
7) Developing copy in English and Spanish with less than 3% margin of error.
8) Following best practices and work flow as established by AOL Creative
Development programming team as communicated to the Consultant Project Manager
9) Refreshing content in a timely and appropriate manner as established for each
content area by AOL USH Programming Director (this may occasionally require work
at night or on weekends as determined by Content direction)
10) Frequent, close, productive & positive contact with matrixed channel
relationships (i.e. Music, Sports, News, Community, Entertainment, Network
programming etc) to enhance collaboration, cross promotion, and relationship
building throughout AOL Programming organization
11) Serving as subject matter expert for the USH market, including staying
abreast of and communicating developments in programming area on major
competitor sites and upcoming trends
12) Staying abreast of general market events, trends, developments in
programming area, closely attuned to USH perspective on General market events in
order to provide complementary community and feature based programming (i.e. war
on Iraq)
13) Staying abreast of developments in matrixed channels that program in English
to adapt, respond and create programming that is complementary and in keeping
with the AOL Latino programming vision as set forth by AOL USH Brand team.
15
14) Understanding, comfort and proficiency in the following Tools ("Current
Tools"): Rainman, Grinder, Shark, Shark Lite, Community Center tool (for
publishing), Poll tool (to cover all "voting tools" including quizzes, surveys,
ratings, polls, etc.), URC, ASPP, Webstats and Tracer X. AOL will provide
training for any updates to the Current Tools or any new tools and technologies
(i.e., other than the Current Tools)). It is Consultant's responsibility to
train any new Programmers on the Current Tools; provided that to the extent a
Programmer leaves Consultant's employment and such Programmer is the only
Programmer trained in a particular Current Tool, AOL shall provide training for
such Current Tool to the new Programmer hired in replacement of the departing
Programmer.
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EXHIBIT B
TERMS AND CONDITIONS
I. RIGHTS IN AOL PROPERTY/TRADEMARKS
NO OWNERSHIP OR LICENSE. Nothing in this Agreement shall convey to Consultant
any right, license, title, interest in and to the Work (as defined below), the
AOL" look and feel", or any other AOL property, property interest, license or
right.
RIGHT TO USE TRADEMARKS. This Agreement gives Consultant no right to use any AOL
trade name, trademark or service xxxx, except as is necessary for the
performance of the Consulting Services.
II. CONFIDENTIALITY/PROPRIETARY RIGHTS/ SECURITY
TRADING
CONFIDENTIALITY. During the Term, and for a period of two (2) years following
expiration or termination of this Agreement, each party agrees that it will take
reasonable steps, at least substantially equivalent to the steps it takes to
protect its own proprietary information, to prevent the duplication or
disclosure of Confidential Information of the other party, other than by or to
its employees or agents who must have access to such Confidential Information to
perform such party's obligations hereunder, who will each agree to comply with
this Section. Notwithstanding the foregoing, either party may issue a press
release or other disclosure containing Confidential Information without the
consent of the other party, to the extent such disclosure is required by law,
rule, regulation or government or court order. In such event, the disclosing
party will provide at least five (5) business days prior written notice of such
proposed disclosure to the other party. Further, in the event such disclosure is
required of either party under the laws, rules or regulations of the Securities
and Exchange Commission or any other applicable governing body, such party will
(i) redact mutually agreed-upon portions of this Agreement to the fullest extent
permitted under applicable laws, rules and regulations and (ii) submit a request
to such governing body that such portions and other provisions of this Agreement
receive confidential treatment under the laws, rules and regulations of the
Securities and Exchange Commission or otherwise be held in the strictest
confidence to the fullest extent permitted under the laws, rules or regulations
of any other applicable governing body. For purposes of this Agreement,
"Confidential Information" shall mean any information relating to or disclosed
in the course of the Agreement, which is or should be reasonably understood by
the receiving party to be confidential or proprietary to the disclosing party,
including, but not limited to, the terms of the Agreement, any and all
information collected by AOL in connection with a user's registration for any
service on the AOL Network and any and all AOL Member Information, product
designs, sales, cost and other unpublished information, product and business
plans, and marketing data. "Confidential Information" will not include
information (a) already lawfully known to or independently developed by the
receiving party, (b) disclosed in published materials, (c) generally known to
the public, (d) lawfully obtained from any third party; or (e) expressly
permitted to be disclosed pursuant to the terms of this Agreement.
PROPRIETARY RIGHTS. Unless otherwise specified in a Schedule, all work, services
and materials performed or created under any Schedule, by the Programmers or
Consultant, excluding third party Content therein ("Work"), including, but not
limited to, (i) names, characters, protectible organizational structures, "look
and feel", other "brand" components, (ii) all materials, writings, products,
deliverables developed or prepared for AOL by the Programmers or Consultant
under such Schedule (whether or not such Schedule is completed) (collectively,
"Materials") and (iii) any and all new or improved idea, design, concept, or
other invention made or developed by the Programmers or Consultant during the
course of rendering the Consulting Services or developing or preparing the
Materials (collectively, "Invention"), are the property of AOL and all title and
interest therein shall vest in AOL and shall be deemed to be a work made for
hire and made in the course of Consulting Services rendered hereunder.
Consultant shall promptly and completely disclose to AOL in writing any and all
Inventions. For the avoidance of doubt and notwithstanding the foregoing, Work
shall not include any work, services, Materials, Inventions or Content developed
or licensed by Consultant for use in any product, service or property owned,
17
operated or distributed by Consultant or any of its wholly-owned direct or
indirect subsidiaries ("Consultant Property"). In the event any Consultant
Property is included within the Work, Consultant hereby grants AOL a worldwide
license to use (but not modify or sublicense) such Consultant Property within
Latino; until such time as the foregoing License has been terminated by
Consultant upon reasonable notice to AOL.
To the extent that title to any Works may not, by operation of law, vest in AOL
or such Works may not be considered works made for hire, Consultant hereby
irrevocably assigns to AOL all right, title and interest in and to any Work,
including but not limited to any and all Materials and Inventions. All Works,
including but not limited to Materials and Inventions, shall belong exclusively
to AOL, and AOL shall have the right to obtain and to hold in its own name,
copyrights, registrations, patents, or such other protection as may be
appropriate to the subject matter, and any extensions and renewals thereof.
Consultant agrees to give AOL and any person designated by AOL such reasonable
assistance, at AOL's request and expense, as is required to perfect, secure and
protect AOL's intellectual property and other rights set forth in this Section,
including but not limited to executing all documents necessary to perfect,
secure and protect such rights.
Unless otherwise requested by AOL, upon the completion of the services to be
performed under each Schedule or upon the earlier termination of such Schedule,
Consultant shall immediately turn over to AOL all Work, including without
limitation, any and all Materials and Inventions, developed pursuant to such
Schedule.
SECURITIES TRADING POLICY. Consultant agrees that the Programmers and any
Consultant employee with access to material, non-public information of AOL
provided as a result of this Agreement, for the term of this Agreement and for
as long thereafter as such information remains material to AOL and non-public,
will comply with terms of AOL's securities trading policy (the "Securities
Policy"), a copy of which shall be be provided to Consultant, as revised from
time to time, to the same extent as employees of AOL are obligated to comply
with the Securities Policy.
RELATIONSHIP WITH AOL MEMBERS.
(a) SOLICITATION OF SUBSCRIBERS. (i) During the term of this Agreement and for a
two year period thereafter, Consultant will not use the AOL Network (including,
without limitation, the e-mail network contained therein) to solicit AOL Members
on behalf of another Interactive Service. More generally, Consultant will not
send unsolicited, commercial e-mail (i.e., "spam") or other online
communications through or into AOL's products or services, absent a Prior
Business Relationship. For purposes of this Agreement, a "Prior Business
Relationship" will mean that the AOL Member to whom commercial e-mail or other
online communication is being sent has voluntarily either (A) engaged in a
transaction with Consultant or (B) provided information to Consultant through a
contest, registration, or other communication, which included clear notice to
the AOL Member that the information provided could result in commercial e-mail
or other online communications being sent to that AOL Member by Consultant or
its agents. Any commercial e-mail or other online communications to AOL Members
which are otherwise permitted hereunder will (x) include a prominent and easy
means to "opt-out" of receiving any future commercial communications from
Consultant and (y) shall also be subject to AOL's then-standard restrictions on
distribution of bulk e-mail (e.g., related to the time and manner in which such
e-mail can be distributed through or into the AOL product or service in
question).
(ii) Consultant shall ensure that its collection, use and disclosure of
information obtained from AOL Members under this Agreement ("Member
Information") complies with (A) all applicable laws and regulations and (B)
AOL's standard privacy policies, available on the AOL Service at the keyword
term "Privacy". Except to the extent required by law, rule, regulation or
18
government or court order, Consultant will not disclose Member Information
collected hereunder to any third party in a manner that identifies AOL Members
as end users of an AOL product or service or use Member Information collected
under this Agreement to market another Interactive Service.
(b) EMAIL NEWSLETTERS. Any email newsletters sent to AOL Members by Consultant
or its agents shall (i) be subject to AOL's policies on use of the email
functionality, including but not limited to AOL's policy on unsolicited bulk
email, (ii) be sent only to AOL Members requesting to receive such newsletters,
(iii) not contain Content which violates AOL's Terms of Service, and (iv) not
contain any advertisements, marketing or promotion for any other Interactive
Service.
For purposes of this Agreement, "AOL NETWORK" shall mean (i) The AOL Service and
(ii) any other product, service or property owned, operated, distributed or
authorized to be distributed by or through AOL or its Affiliates (other than
Consultant and its wholly-owned direct or indirect subsidiaries) worldwide. "AOL
MEMBER" shall mean any user of the AOL Network, including authorized users
(including any sub-accounts under an authorized master account) of the AOL
Service. "AOL SERVICE" SHALL MEAN The standard narrow-band U.S. version of the
America Online(R) brand service.
III. REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants to the other Party that: (i) such party has
the full corporate right, power and authority to enter into this Agreement and
to perform the acts required of it hereunder; (ii) the execution of this
Agreement by such Party, and the performance by such Party of its obligations
and duties hereunder, do not and will not violate any agreement to which such
Party is a party or by which it is otherwise bound; (iii) when executed and
delivered by such Party, this Agreement will constitute the legal, valid and
binding obligation of such Party, enforceable against such Party in accordance
with its terms; and (iv) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter hereof
that are not expressly provided for in this Agreement. Consultant further agrees
that, unless otherwise approved by its preferred stockholders and board of
directors, it is not authorized to and will not, during the Term, establish
another portal, web site or Content area targeted primarily to US Hispanics and
will not during the Term promote any third party portals, web sites or Content
primarily targeting US Hispanics other than AOL Latino.
IV. INDEMNITY
INDEMNITY. Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("Liabilities"), resulting from the indemnifying Party's material breach or
alleged breach of any obligation, representation, or warranty of this Agreement.
In addition, AOL will defend, indemnify, save and hold harmless Consultant and
Consultant's officers, directors, agents, affiliates, distributors, franchisees
and employees from any and all Liabilities arising out of or in any way relating
to (i) any agreement between AOL and a third party specifically relating to
Content for AOL Latino or (ii) any Content provided to Consultant by (A) AOL or
(B) any third-party under any such agreement; provided, that no such indemnity
shall be available to Consultant to the extent such Liabilities arise out of (x)
Consultant's use of any such Content in a manner inconsistent with the terms
specified by AOL to Consultant, or (y) any other action of Consultant
inconsistent with direction provided by AOL. As used in this Agreement,
"Content" shall mean text, images, video, audio (including, without limitation,
music used in time relation with text, images, or video), and other data,
products, tools, functionalities, services, advertisements, promotions, URLs,
19
keywords and other navigational elements, links, pointers, technology and
software, including any modifications, upgrades, updates, enhancements and
related documentation. In addition, Consultant shall defend, indemnify and hold
harmless AOL, its officers, directors, agents, affiliates, distributors,
franchisees and employees from any and all Liabilities resulting from (a) actual
or alleged infringement of any patent, copyright, or other property right
(including, but not limited to, misappropriation of trade secrets)based on any
Consultant Property provided to AOL, Content on the AOLA Websites linked to from
AOL Latino by the Programmers in accordance with the terms of this Agreement,
the Work (which, for clarification, includes Materials or Inventions), or the
use thereof by AOL in accordance with the terms set forth herein, and (b) the
payment of compensation or salary asserted by an employee or Assistant of
Consultant.
V. GENERAL
EXCUSE. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
NOTICE. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by confirmed facsimile; (ii) on the delivery date if delivered
personally to the Party to whom the same is directed; (iii) one business day
after deposit with a commercial overnight carrier, with written verification of
receipt; or (iv) five business days after the mailing date, whether or not
actually received, if sent by U.S. mail, return receipt requested, postage and
charges prepaid, or any other means of rapid mail delivery for which a receipt
is available. In the case of AOL, such notice will be provided to both the AOL
Project Manger and the Deputy General Counsel (fax no. 000-000-0000), each at
the address of AOL set forth in the first paragraph of this Agreement. In the
case of Consultant, such notice will be provided to both the Vice President, AOL
Services and Business Affairs (fax no. 000-000-0000) and the General Counsel
(fax no. 000-000-0000), each at the address of Consultant set forth in the first
paragraph of this Agreement.
NO WAIVER. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
AMENDMENT. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
FURTHER ASSURANCES. Consultant shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by AOL for the implementation or continuing performance
of this Agreement.
ASSIGNMENT. Consultant shall not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL.
Assumption of the Agreement by any successor to Consultant (including, without
limitation, by way of merger, consolidation or sale of all or substantially all
of Consultant's stock or assets) shall be subject to AOL's prior written
approval. 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.
SUBCONTRACT. No work or services to be performed by Consultant hereunder shall
be subcontracted to or performed on behalf of Consultant by any third party,
except upon written permission by AOL. Notwithstanding the foregoing, in the
event a Programmer leaves the employment of Consultant or is otherwise unable to
perform its functions hereunder, for any reason, Consultant may hire a third
party consultant as reasonably approved by AOL in accordance with Exhibit A to
perform the functions of such Programmer until such time (but in no event more
20
than 90 days) as a replacement can be obtained.
CONSTRUCTION; SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
REMEDIES. Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
GOVERNING LAW AND ARBITRATION.
(a) This Agreement shall be construed and enforced in accordance with the laws
of the State of New York, USA, but without giving effect to its laws or rules
relating to conflicts of laws, the Uniform Commercial Code, or the United
Nations Convention on Contracts for the International Sale of Goods. To permit
the enforcement of judgments entered under this Section 16 and the application
of judicial injunctive relief as permitted hereunder, each Party consents to the
jurisdiction of the courts in the place where such judgment enforcement or
injunctive relief is sought. Each Party waives any objection it otherwise may
have to the personal jurisdiction and venue of such courts.
(b) (i) Except as otherwise agreed in writing by the Parties, any claims or
disputes arising under, in connection with, or by reason of the relationships
contemplated under, this Agreement and any subsequent amendments thereof,
including all controversies which may arise between the Parties concerning any
transaction pursuant to this Agreement, the construction, performance or breach
of this Agreement or any accounting hereunder, as well as non-contractual
claims, shall first be escalated to the VP of Business Development, AOL
Interactive Services, currently Xxxx Xxxxxx, fax. no 000-000-0000, and the Vice
President, AOL Services and Business Affairs of Consultant for prompt
resolution. In the event such executives are unable to resolve the matter over a
period of thirty (30) days, or such different period to which the Parties may
agree, it shall be referred to and finally determined by arbitration in
accordance with the then applicable Commercial Arbitration Rules (the "Rules")
of the American Arbitration Association ("AAA") in effect at the time of
commencement of such arbitration, as modified below or by mutual consent of the
parties to such arbitration, and by the majority vote of a tribunal of
arbitrators (the "Tribunal") as set forth below. For the avoidance of doubt, the
procedural rules of the Inter-American Convention on International Commercial
Arbitration (the "Panama Convention") shall not apply to the proceedings of the
Tribunal.
(ii) The Tribunal shall consist of three (3) arbitrators, all of whom
shall be experienced legal practitioners having at least ten (10) years of
experience in advising clients with respect to computer or media-related
technology and international joint ventures, provided that if any party objects
to the qualifications of any arbitrator, such objection must be made within ten
(10) days of appointment of such arbitrator or it shall be waived. One
arbitrator shall be appointed by AOL, one arbitrator shall be appointed by
Consultant, and the third by the two so appointed. If any such Party shall fail
to make an appointment within sixty (60) days after the initiation of
arbitration or if the first two arbitrators shall fail to appoint a third
arbitrator within thirty (30) days after the date of the later to occur of their
appointments, the appointment of such arbitrator shall be made by the AAA,
provided that the arbitrator so chosen meets the qualifications set forth in
this Section. The arbitrators shall be compensated for their services at a rate
to be determined by the parties or by the AAA but based upon normal and
reasonable hourly or daily consulting rates for the neutral arbitrator in the
event the parties are not able to agree upon his or her rate of compensation.
21
(iii) Any arbitration proceedings hereunder shall be held in New York,
New York. All such proceedings and all communications (written or oral)
including any evidence submitted to the Tribunal, shall be in the English
language. The Tribunal shall have the authority to grant any equitable and legal
remedies that would be available in any judicial proceeding instituted to
resolve a disputed matter. The Tribunal shall have the power to order that no
Party shall take any action inconsistent with this Agreement, and each Party
shall continue to perform under this Agreement for the time the arbitration
procedure is pending. However, the Tribunal shall not have the power to alter,
amend or otherwise affect the terms of these arbitration provisions or the
provisions of the Agreement. The ruling and award of the Tribunal shall be final
and binding to the maximum extent allowed by the laws applied to this Agreement,
provided that the rules of the United Nations Convention on Contracts for the
International Sale of Goods shall not apply, and provided further, that the
Tribunal may not, in any event, make any ruling, finding or award that does not
conform to the terms and conditions of this Agreement.
(iv) This agreement to arbitrate shall be without prejudice to the
right of the Parties to seek preliminary injunctive, interim, or other form of
provisional equitable relief in any court or any judicial authority which has
jurisdiction over the parties and/or the subject matter of the controversy.
During the arbitration, each Party shall bear its own attorneys' fees and its
own costs and expenses (including filing fees) and one-half of the total
arbitrators', translators', and other administrative fees of arbitration
("Costs"), provided, however, that the award made by the Tribunal shall include
an award of Costs, in favor of the "prevailing party," as determined by the
Tribunal. Judgment upon the award may be entered by any court having
jurisdiction thereof or having jurisdiction over the Parties or their assets.
(v) All testimony of witnesses at any arbitration proceeding held
pursuant to these provisions shall be taken under oath, and shall be governed by
the rules of evidence as set forth under the U.S. Federal Rules of Evidence and
judicial interpretations thereof. The parties shall be entitled to conduct
discovery proceedings in accordance with the U.S. Federal Rules of Civil
Procedure. For any claim submitted to arbitration, the burden of proof shall be
as it would be if the claim were litigated in a judicial proceeding. Upon the
conclusion of any arbitration proceedings, hereunder, the arbitrators shall
render findings of fact and conclusions of law and a written opinion setting
forth the basis and reasons for any decision reached by them and shall deliver
such documents to each Party to this Agreement along with a signed copy of the
award. Any judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction of the subject matter thereof. Except as
specifically provided in this Agreement, arbitration shall be the sole and
exclusive remedy of the Parties for any disputed matter.
EXPORT CONTROLS. Both Parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
PUBLICITY. Consultant agrees that it will not, without AOL's prior approval, use
in advertising, publicity, or otherwise the name of AOL in connection with this
Agreement, or refer to the existence of this Agreement in press releases;
provided that subsequent to any press release announcing the entering into of
this Agreement, factual references by Consultant to the existence of this
Agreement shall not require the approval of AOL. Notwithstanding the foregoing,
Consultant may issue press releases and other disclosures as required by law,
rule, regulation or court order or as reasonably advised by legal counsel
without the consent of AOL.
LIMITATIONS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGE OF ANY KIND OR NATURE,
WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT (INCLUDING, WITHOUT
LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT),
TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE,
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EVEN IF ANY OTHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR
DAMAGE IN ADVANCE. EXCEPT AS PROVIDED IN THE "INDEMNITY" SECTION, THE MAXIMUM
LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION
WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID TO CONSULTANT
HEREUNDER.
HEADINGS. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
SURVIVING SECTIONS. The following sections shall survive the termination of this
Agreement: 2.2 ("Independent Contractor"); 2.3 ("Consultant's Employees and
Assistants"); 4.6 ("Taxes") of this Agreement and this Exhibit B.
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