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CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
This Interactive Services Agreement (this "Agreement"), effective
as of October 1, 1998 (the "Effective Date"), is made and entered into by and
between (i) America Online, Inc. ("AOL"), a Delaware corporation, with its
principal offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000, and (ii) Straight
Arrow Publishers Co., L.P., a Delaware limited partnership, with its
principal offices at 0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX
00000 and JAM TV Corporation, a Delaware corporation, with its principal
offices at 000 X. XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000
(collectively, "Interactive Content Provider" or "ICP") (each of AOL and ICP,
a "Party" and collectively the "Parties").
INTRODUCTION
AOL and ICP each desires that ICP provide the Online Area through
the AOL Network, subject to the terms and conditions set forth in this
Agreement. Defined terms used but not defined in the body of the Agreement or
in Exhibit C shall be as defined on Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 ANCHOR TENANCY. Beginning on the Launch Date, ICP shall
receive anchor tenant distribution within the Music subchannel
of the Entertainment channel (or any specific successor(s)
thereof) offered on the AOL Service, as follows: AOL shall (a)
continuously and prominently place an agreed-upon ICP logo or
banner (an "Anchor Tenant Button") on each of (i) the Music
subchannel screen and (ii) the Music genre (i.e., Rock/Pop,
R&B/Rap, Classical, Alternative, Jazz and Country) screens
within the Music subchannel (or any specific successor(s)
thereof) which Anchor Tenant Buttons shall link to the Online
Area, (b) provide ICP with the keyword "Rolling Stone" which
shall link to the Online Area, and (c) list the Online Area in
AOL's "Directory of Services" and "Find" features. Except to
the extent expressly described herein, the exact form,
placement and nature of the Anchor Tenant Buttons shall be
determined by AOL in its reasonable editorial discretion;
provided, however, that ICP's Anchor Tenant Buttons each shall
be of equal or greater size than the anchor tenant button of
any other standard anchor tenant which is continuously
displayed on the same screen. So long as ICP is in compliance
with the terms of this Agreement, no more than three (3) other
parties shall receive standard anchor tenant continuous
placement on the Music subchannel screen along with ICP. For
purposes of this Agreement, Music Boulevard shall not be
deemed to be an anchor tenant.
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*** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION ***
1.2 ONLINE AREA. ICP shall work diligently to develop and
implement the Online Area, consisting of the specific Content
described on Exhibit A.1 attached hereto. ICP shall develop
the design of the Online Area in consultation with AOL and in
accordance with any standard design and content publishing
guidelines provided to ICP by AOL (including, without
limitation, any HTML publishing guidelines). ICP shall not
authorize or permit any third party to distribute the Licensed
Content or any other substantial amount of Content of ICP
through the AOL Network absent AOL's prior written approval,
which shall not be unreasonably withheld. The inclusion of
any additional Content in the Online Area (including, without
limitation, any features, functionality or technology) not
expressly described on Exhibit A-1 shall be subject to AOL's
prior written approval, which shall not be unreasonably
withheld.
1.3 LICENSE. ICP hereby grants AOL a worldwide license to use,
market, license, store, distribute, display, communicate,
perform, transmit and promote the Licensed Content (or any
portion thereof) and the ICP Internet Site through such areas
or features of the AOL Network as AOL deems appropriate,
including without limitation the right to integrate Content
from the ICP Internet Site or another Linked Interactive Site
by linking to specific areas on the ICP Internet Site,
provided that the link to any such Content on the AOL Network
shall conform with the specifications set forth on Exhibit D.
Any disaggregation of the Licensed Content by AOL shall be for
the purpose of promoting the Licensed Content and shall
contain a link to the Online Area or the ICP Internet Site.
In addition, AOL shall not extract complete articles or
stories from the Online Area or the ICP Internet Site and post
them elsewhere on the AOL Network without ICP's consent. AOL
may not sublicense the Licensed Content to third parties, or
redistribute the Licensed Content outside the AOL Network,
except that (a) AOL may sublicense or otherwise transfer the
Licensed Content to its Affiliates for the same purposes and
with the same restrictions set forth in this Agreement or in
connection with an assignment of this Agreement and (b)
nothing herein shall be deemed to restrict the ability of AOL
Members or other users through the AOL Network to access and
use the Licensed Content in accordance with AOL's
then-standard Terms of Service.
1.4 OTHER INTERACTIVE AREAS.
1.4.1 AOL APPROVAL. ICP shall not be permitted to establish
any "pointers" or links between the Licensed Content
and any other area on or outside of the AOL Network,
including, without limitation, sites on the World Wide
Web portion of the Internet, without the prior written
approval of AOL; provided, however, that the Online
Area may link to from the ICP Internet Site so long as
the ICP Internet Site is in compliance with the terms
of this Agreement and the Online Area may contain a
limited number of links which are editorial in nature
(i.e., which point to contextually related information
without exposing AOL Members to promotions or
advertisements). In addition, AOL may restrict its
approval (at any time) to specific portions of Content,
Products, or functionality within a Linked Interactive
Site. In such case, establishment of the link from the
Licensed
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Content to the Linked Interactive Site will be subject
to mutual agreement of the Parties regarding the means
by which access will be restricted to the approved
portions of the Linked Interactive Site.
1.4.2 MANAGEMENT. AOL shall have no obligations of any kind
with respect to any Linked Interactive Site. ICP shall
be responsible for any hosting or communication costs
associated with any Linked Interactive Sites
(including, without limitation, the costs associated
with (i) any agreed-upon direct connections between the
AOL Network and a Linked Interactive Site or (ii) a
mirrored version of a Linked Interactive Site). Any
Linked Interactive Sites shall be subject to the
license set forth in Section 1.3 above. ICP will
permit AOL Members to access and use any ICP
Interactive Site free of charge during the Term. AOL
Members shall not be required to go through a
registration process (or any similar process) in order
to access and use any ICP Interactive Site.
Notwithstanding the foregoing, ICP may require
registration for certain services or features of the
ICP Internet Site so long as such registration process
is not more burdensome for AOL Members than the
registration process required by ICP for any other user
of such services or features (whether on the ICP
Internet Site or another ICP Interactive Site). For a
period of one year after the expiration or earlier
termination of this Agreement, ICP will allow AOL
Members to access any ICP Interactive Site on terms and
conditions no less favorable than the terms and
conditions available to other users of the ICP
Interactive Site. Upon prior written notice to AOL,
ICP may require a surcharge for AOL Members to access a
portion or portions of the Content described on Exhibit
A-2, provided, (a) the portion or portions of Content
for which a surcharge is required is not material; (b)
the surcharge required of AOL Members is less than or
equal to the surcharge required of any other user of
such Content (whether on the ICP Internet Site or
another ICP Interactive Site) and (c) AOL shall have
the right to remove, or require ICP to remove, the
access of AOL Members to the surcharged Content if such
surcharge will create an adverse effect on the AOL
Member experience, in AOL's reasonable judgment.
1.5 CARRIAGE FEE. ICP shall pay AOL One Million Two Hundred
Thousand Dollars ($1,200,000.00) as follows:
1.5.1 CASH PAYMENT. ICP shall pay AOL One Million Two
Hundred Thousand Dollars ($1,200,000.00) in four (4)
equal installments during the Term, with the first
payment being due within five (5) days after this
Agreement is executed and each payment thereafter being
due on the dates which are three (3) months, six (6)
months, and nine (9) months, respectively, after the
Effective Date.
1.6 IMPRESSIONS GUARANTEE. AOL shall provide ICP with at least
*** OR *** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS
INFORMATION *** from ICP's presence on the AOL Network (the
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Impressions Guarantee"). For the purposes of this Agreement,
ICP's presence on an AOL screen shall conform to the
specifications set forth on Exhibit D (each, an "ICP
Presence"), provided that only screens that contain a link to
the Online Area, ICP Internet Site or a Welcome Mat will count
against the Impressions Guarantee. In the event that the
Impressions Guarantee is not met (or will not, in AOL's
reasonable judgment, be met) during the Term, at AOL's option
either (a) the Term shall be extended for up to six (6) months
without additional carriage fees payable by ICP until the
Impressions Guarantee is met, provided that any Impressions
counted against the Impressions Guarantee during such extended
Term shall be generated from ICP's presence within the
Entertainment channel of the AOL Network (or any specific
successor(s) thereof) or other screens mutually agreed upon by
the Parties, or (b) AOL shall, from time to time, provide ICP
with the remaining Impressions in the form of advertising
space within the AOL Network of comparable value to the
undelivered Impressions (as reasonably determined by AOL),
provided that any Impressions counted against the Impressions
Guarantee during such extended Term shall be generated from
ICP's presence within the Entertainment channel of the AOL
Network (or any specific successor(s) thereof) or other
screens mutually agreed upon by the Parties, or (c) some
combination thereof.
1.7 ADVERTISING DISCOUNTS. During the Initial Term, ICP shall
have the right to purchase from standard advertising banners
within the AOL Service, subject to availability, at rates
discounted by *** from AOL's standard advertising rate card.
Such advertising shall be subject to the terms and conditions
of AOL's then-standard advertising insertion order and
advertising policies, including third party exclusivity
restrictions.
2. ADVERTISING AND TRANSACTIONS
2.1 ADVERTISING SALES. AOL owns all right, title and interest in
and to the advertising and promotional spaces within the AOL
Network (including, without limitation, advertising and
promotional spaces on any AOL forms or pages which are
included within, preceding, framing or otherwise associated
with the Licensed Content or any Linked Interactive Sites).
The specific advertising inventory within any AOL forms or
pages shall be as reasonably determined by AOL. AOL hereby
grants ICP the exclusive right to license or sell promotions,
advertisements, links, pointers or similar services or rights
through the Online Area ("Online Advertisements"), subject to
(i) AOL's approval for each Online Advertisement; and AOL
hereby grants ICP the right to license or sell promotions,
advertisements, links, pointers or similar services or rights
through the Welcome Mat(s) ("Welcome Mat Advertisements" and,
collectively with Online Advertisements, "AOL
Advertisements"), subject to AOL's approval for each Welcome
Mat Advertisement.
2.2 ADVERTISING POLICIES.
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2.2.1 AOL ADVERTISEMENTS. Any AOL Advertisements sold by ICP
or its agents shall be subject to AOL's then-standard
advertising policies. Any AOL Advertisements sold by ICP or
its agents for the first screen of the Online Area shall be
subject to AOL's exclusivity commitments to third parties.
ICP shall not sell an AOL Advertisement to any Interactive
Service.
2.2.2 LINKED INTERACTIVE SITE ADVERTISEMENTS. In the event
that AOL notifies ICP in writing that any advertising or
promotional Content associated with any Linked ICP Interactive
Site (a "Linked ICP Interactive Site Advertisement") is in
violation of AOL's then-standard advertising policies, then
ICP shall take commercially reasonable steps to block access
by AOL Members to such advertising using ICP's then-available
ad server or other technology. In the event that ICP cannot,
through its commercially reasonable efforts, block access by
AOL Members to the advertising in question, then ICP shall
provide AOL prompt written notice of such fact. AOL may then,
at its option, either (i) restrict access from the AOL Network
to the advertising in question using technology available to
AOL or (ii) terminate the link from the AOL Network to the
Linked ICP Interactive Site until such time as the advertising
in question is no longer displayed. ICP will cooperate with
AOL's reasonable requests to the extent AOL elects to
implement any such access restrictions.
2.3 ADVERTISING COMPLIANCE. ICP shall take all reasonable steps
necessary to ensure that any AOL Advertisement sold by ICP
complies with all applicable federal, state and local laws and
regulations.
2.4 INTERACTIVE COMMERCE. All merchandising on the Online Area,
the Welcome Mat(s) and/or the ICP Internet Site shall be
subject to (i) the terms of this Agreement, (ii) the
requirements posted at keyword "Marketplace Policy" on the
America Online-Registered Trademark- brand service (or such
other keyword as AOL may designate during the Term), (iii)
approval by AOL of all Products to be offered which approval
shall not be unreasonably withheld, and (iv) the then-current
requirements of AOL's merchant certification program. Prior to
entering into negotiations with any third party regarding
merchandising or commerce arrangements through the ICP
Internet Site, ICP shall give AOL written notice of such
desire and, upon request by AOL made within ten (10) business
days after receipt of such notice from ICP, negotiate in good
faith with AOL or its commerce or marketing partner in the
applicable product/service category regarding a merchandising
or commerce arrangement. ICP represents that it has in good
faith negotiated with N2K regarding a commerce arrangement on
the Online Area and/or the ICP Internet Site and has been
unable to reach agreement.
3. PRODUCTION AND SUPPORT
3.1 PRODUCTION WORK. In the event that ICP requests AOL's
production assistance in connection with (i) the initial
development, design and construction of the Online Area, (ii)
ongoing programming and maintenance related to the Online
Area, (iii) a redesign of or addition to the Online Area
(e.g., a change to an existing screen format or construction
of a new custom form), (iv) construction
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and maintenance of an approved advertising, sponsorship or
promotional area or online "store," (v) production to modify
work performed by a third party provider or (vi) any other
type of production work, ICP shall work with AOL to develop
detailed production plans for the requested production
assistance (the "Production Plan"). Following receipt of the
final Production Plan, AOL shall notify ICP of (i) AOL's
availability to perform the requested production work, (ii)
the proposed fee or fee structure for the requested production
and maintenance work and (iii) the estimated development
schedule for such work. To the extent the Parties reach
agreement regarding implementation of agreed-upon Production
Plan, such agreement shall be reflected in a separate work
order signed by the Parties. To the extent ICP elects to
retain a third party provider to perform any such production
work, work produced by such third party provider must
generally conform to AOL's production Standards & Practices (a
copy of which will be supplied by AOL to ICP upon request).
The specific production resources which AOL allocates to any
production work to be performed on behalf of ICP shall be as
determined by AOL in its sole discretion.
3.2 PUBLISHING TOOLS. AOL shall make available to ICP AOL's
proprietary publishing tools (each a "Tool") which are made
available to AOL's similarly situated content partners in
order to develop and implement the Licensed Content during the
Term. ICP shall be granted a nonexclusive license to use any
such Tool, which license shall be subject to: (i) ICP's
compliance with all rules and regulations relating to use of
the Tools, as published from time to time by AOL, (ii) AOL's
right to withdraw or modify such license at any time, and
(iii) ICP's express recognition that AOL provides all Tools on
an "as is" basis, without warranties of any kind.
3.3 TRAINING AND SUPPORT. AOL shall make available to ICP
standard AOL training and support programs related to ICP's
management and maintenance of the Licensed Content. ICP can
select its training and support program from the options then
offered by AOL. ICP shall be responsible to pay the fees
associated with its chosen training and support package;
provided, however, that AOL will provide such training to two
(2) of ICP's employees without charging a fee. In addition,
ICP will pay travel and lodging costs associated with its
participation in any AOL training programs (including AOL's
travel and lodging costs when training is conducted at ICP's
offices), including such costs for the two (2) employees that
AOL trains without charging a fee.
4. PROMOTION
4.1 COOPERATION. Each Party shall cooperate with and reasonably
assist the other Party in supplying Content for marketing and
promotional activities which relate to the Online Area.
4.2 INTERACTIVE SITES. ICP shall provide AOL with the following
promotions during the Term: promotions for AOL on each ICP
Interactive Site appearing at least as prominently as any
promotion (other than standard banner advertisements) for
another Interactive Service on such ICP Interactive Site
unless ICP receives full
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value in cash or in-kind consideration for such promotion;
provided, however, that ICP shall give AOL the first right to
purchase any such promotions. ICP shall use best efforts to
secure comparable promotions for the Online Area and AOL
within any Linked Interactive Site controlled by a third party.
4.3 PROMOTION PLAN. ICP shall use its best efforts to prominently
and regularly promote AOL and the Online Area in publications,
programs, features or other forms of media not specifically
addressed elsewhere in this Section 4 over which ICP exercises
at least partial editorial control. When promoting AOL, ICP
shall promote AOL as the preferred access provider through
which a user can access ICP's Content (and ICP shall not
implement or authorize any other promotions on behalf of any
third parties which are inconsistent with the foregoing).
Promotion of AOL shall be at least as prominent as any
promotion of any other Interactive Service.
4.4 KEYWORD PROMOTION. In any instances when ICP makes
promotional reference to an ICP Interactive Site, including
any listings of the applicable "URL(s)" for such web site(s)
(each a "Web Reference"), ICP shall include a listing of the
AOL "keyword" for ICP's Online Area of comparable prominence
to the Web Reference.
5. PAYMENTS AND REPORTING.
5.1 PAYMENT SCHEDULE. Except as otherwise specified in Section
1.5, each Party agrees to pay the other Party all amounts
received and owed to such other Party as described herein on a
quarterly basis within thirty (30) days of the end of the
quarter in which such amounts were collected by such Party.
The first quarter for which payment is to be made shall (i)
begin on the first day of the month following the month of
execution of this Agreement and (ii) include the portion of
the month of execution following the Effective Date (unless
the Agreement was executed on the first day of a month, in
which case the quarter shall be deemed to begin on the first
day of such month). All payments by ICP hereunder shall be
paid in immediately available, non-refundable U.S. funds wired
to the "America Online" account, Account Number 323070752 at
the Chase Manhattan Bank, 1 Chase Manhattan Plaza, New York,
New York 10081 (ABA: 000000000), or such other account of
which AOL shall give ICP written notice.
5.2 REPORTING. On no less than a monthly basis, each Party shall
supply or make available to the other Party reports containing
the following information:
5.2.1 ADVERTISING AND TRANSACTIONS. AOL shall provide
detailed information to ICP regarding any AOL
Advertisements sold by AOL or its agents. ICP will
provide AOL with a quarterly report, within 30 days
following the end of such quarter, with a reasonably
accurate approximation, on an aggregated basis, of all
merchandising activity which occurred during such
quarter on the Online Area, the Welcome Mat.
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5.2.2 USAGE DATA. AOL shall make available to ICP a monthly
report specifying usage information for the Online Area
for the prior month in the format which is generally
made available to similarly situated interactive
content providers. In addition, for any ICP
Interactive Site which AOL is caching, AOL shall supply
ICP with monthly reports reflecting aggregate
impressions by AOL Members to the cached version of the
ICP Interactive Site during the prior month. For each
Linked ICP Interactive Site, ICP will supply AOL with
monthly reports which reflect total impressions by AOL
Members to the Linked ICP Interactive Site during the
prior month.
5.2.3. PROMOTIONAL COMMITMENTS. ICP shall provide to AOL a
monthly report documenting its compliance with any
promotional commitments it has undertaken pursuant to
Section 4 in the form attached as Exhibit E hereto.
6. CUSTOMIZED LINKED INTERACTIVE SITE
6.1 PERFORMANCE. ICP shall optimize the ICP Internet Site for
distribution hereunder according to AOL specifications and
guidelines, including the Operating Standards set forth on
Exhibit F attached hereto.
6.2 CUSTOMIZATION. ICP shall customize the ICP Internet Site for
AOL Members as follows:
(a) upon AOL's request, create a customized, co-branded
home page "welcome mat" for the AOL audience for each
area on the ICP Internet Site linked to from the AOL
Network on a continuous basis (each a "Welcome Mat"),
which Welcome Mat(s) shall be subject to AOL approval;
(b) ensure that AOL Members linking to the ICP
Internet Site do not receive advertisements, promotions
or links for any entity reasonably construed to be in
competition with AOL or otherwise in violation of AOL's
then-standard advertising policies or exclusivity
commitments to third parties; and
(c) provide continuous navigational ability for AOL
Members to return to an agreed-upon point on the AOL
service (for which AOL shall supply the proper address)
from ICP Internet Site (e.g., the point on the AOL
service from which the ICP Internet Site is linked),
which, at AOL's option, may be satisfied through the
use of a hybrid browser format.
6.3 CONTENT AND LINKS ON ICP INTERNET SITE. The ICP Internet Site
shall consist of the Content described on Exhibit A-2 hereto.
The inclusion of any additional Content for distribution
through the AOL Network (including, without limitation, any
features, functionality or technology) which is not
substantially similar to the types or categories of Content
expressly described on Exhibit A-2 shall be subject to AOL's
prior written approval. The Parties will work together on
mutually acceptable links (including links back to AOL) within
the ICP Internet Site in order to create a robust and engaging
AOL member experience. ICP shall take reasonable efforts to
ensure that AOL traffic is generally either kept within
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the ICP Internet Site or channeled back into the AOL Network.
To the extent that AOL notifies ICP in writing that, in AOL's
reasonable judgment, links from such site cause an excessive
amount of AOL traffic to be diverted outside of such site and
the AOL Network in a manner that has a detrimental effect on
the traffic flow of the AOL audience, then ICP shall
immediately reduce the number of links out of such site(s).
In the event that ICP cannot or does not so limit diverted
traffic from the ICP Internet Site, AOL reserves the right to
terminate such links from the AOL Network to the ICP Internet
Site.
6.4 REVIEW. ICP shall allow appropriate AOL personnel to have
access to the ICP Internet Site for the purpose of reviewing
such site to determine compliance with the provisions of this
Section 6.
7. TERM AND TERMINATION.
7.1. TERM. Unless earlier terminated as set forth herein, the
initial term of this Agreement shall commence on the Effective
Date and expire fourteen (14) months from the Effective Date
("Initial Term"). AOL shall have the right, at its option, to
renew this Agreement for one (1) one-year renewal term (the
"Renewal Term" and, together with the Initial Term, the
"Term") by giving ICP written notice of such election not
later than thirty (30) days prior to the expiration of the
Initial Term. The Renewal Term shall be on the same terms and
conditions contained herein except that (i) AOL shall have no
further option to renew this Agreement, (ii) ICP shall not be
obligated to make any additional payment pursuant to Section
1.5 and (iii) ICP shall pay AOL twenty-five percent (25%) of
revenues generated during the Renewal Term from all
advertising, merchandising and commerce activities on the
Online Area and/or from AOL-originated traffic on any ICP
Interactive Sites (net of commissions not to exceed 20% of
gross revenues). Upon the expiration or earlier termination of
this Agreement, AOL shall have the option, for up to two (2)
years, to use one or more ICP trademarks or tradenames as
keywords and/or text-based links from the AOL Network to the
ICP Internet Site.
7.2 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.
7.3 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared
insolvent or bankrupt, (iii) is the subject of any proceeding
related to its 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.
7.4 TERMINATION OF PRIOR AGREEMENT. As of the Effective Date, the
Information Provider Agreement effective as of January 1, 1997
between ICP and AOL (together with any amendments or
supplements thereto, the "Prior Agreement")
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shall terminate and the Parties shall have no liability for
matters accruing under the Prior Agreement after the Effective
Date other than with respect to any provisions of the Prior
Agreement which expressly survive the termination. ICP
acknowledges that all amounts due ICP from AOL pursuant to the
Prior Agreement have been paid in full.
8. TERMS AND CONDITIONS. The legal terms and conditions set forth on
Exhibit C attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the Effective Date.
AMERICA ONLINE, INC. STRAIGHT ARROW PUBLISHERS CO., L.P.
By: By:
-------------------------------- --------------------------------
Print Name: Print Name:
------------------------ ------------------------
Title: Title:
----------------------------- -----------------------------
Date: Date:
------------------------------ ------------------------------
Tax ID/EIN#:
-----------------------
JAM TV CORPORATION
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
Date:
------------------------------
Tax ID/EIN#:
-----------------------
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EXHIBIT A
EXHIBIT A-1:
THE ONLINE AREA SHALL CONTAIN UP TO AS MUCH CONTENT AS IS CONTAINED IN THE
ICP INTERNET SITE. THE SPECIFIC CONTENT WILL BE OF THE SAME TYPES AND
CATEGORIES OF CONTENT AS CONTAINED IN THE ICP INTERNET SITE. NOTHING
CONTAINED HEREIN SHALL REQUIRE ICP TO PROVIDE EXACTLY OR SUBSTANTIALLY ALL
THE SAME QUANTITY OR VARIETY OF CONTENT PROVIDED WITHIN THE ICP INTERNET
SITE; PROVIDED, HOWEVER, THAT ICP SHALL CONTINUE TO PROGRAM THE ONLINE AREA
IN SUBSTANTIALLY THE SAME MANNER AS IT IS PROGRAMMED AS OF THE EFFECTIVE DATE
IN TERMS OF QUANTITY, BREADTH AND QUALITY OF CONTENT.
EXHIBIT A-2:
THE ICP INTERNET SITE SHALL CONTAIN CONTENT CATEGORIES THAT ARE EQUIVALENT
IN NATURE TO THE VARIETY OF CONTENT AND THE GENERAL CONTENT GENRES PROVIDED
WITHIN ROLLING STONE MAGAZINE. ALTHOUGH IT IS MUTUALLY AGREED THAT THE
PRIMARY FOCUS OF THE ICP INTERNET SITE SHALL BE ON PROVIDING THE MOST
COMPREHENSIVE AGGREGATION OF MUSIC AND MUSIC RELATED CONTENT, FOR PURPOSES OF
THIS AGREEMENT, SUCH CONTENT CATEGORIES THAT ICP SHALL BE ENTITLED TO PUBLISH
OR PRODUCE INCLUDE:
- MUSIC NEWS, INFORMATION, AND MULTIMEDIA MATERIAL
- ENTERTAINMENT INDUSTRY NEWS, INFORMATION, AND MULTIMEDIA MATERIAL
- LIFESTYLE NEWS INFORMATION, AND MULTIMEDIA MATERIAL
- TECHNOLOGY NEWS, INFORMATION, AND MULTIMEDIA MATERIAL
- BOOK AND MAGAZINE NEWS, INFORMATION AND MULTIMEDIA MATERIAL
- TV, MOVIE AND THEATRE NEWS, INFORMATION AND MULTIMEDIA MATERIAL
- POLITICAL NEWS, INFORMATION AND MULTIMEDIA MATERIAL
IN ADDITION TO THE CONTENT CATEGORIES LISTED ABOVE, THE ICP INTERNET SITE
SHALL ALSO CONTAIN DIFFERENT TYPES OF CONTESTS, PROMOTIONS, AND COMMUNITY
RELATED ACTIVITIES INCLUDING MESSAGE BOARDS, INTERACTIVE GAMES, CHATS, ETC.,
SUBJECT TO THE TERMS OF THIS AGREEMENT.
IT IS UNDERSTOOD AND AGREED THAT THE TYPE OF CONTENT DESCRIBED ABOVE SHALL
NOT BE CONSIDERED TO BE THE EXHAUSTIVE LIST OF CONTENT THAT ICP SHALL BE
ENTITLED TO PUBLISH OR PRODUCE ON ITS ICP INTERNET SITE BUT ANY NEW
CATEGORIES SHALL BE SUBJECT TO AOL APPROVAL, NOT TO BE UNREASONABLY WITHHELD.
A.1
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EXHIBIT B
DEFINITIONS. The following definitions shall apply to this Agreement:
AFFILIATE. Any agent, distributor or franchisee of AOL, or an entity in
which AOL holds at least a nineteen percent (19%) equity interest.
AOL LOOK AND FEEL. The distinctive and particular elements of graphics,
design, organization, presentation, layout, user interface, navigation, trade
dress and stylistic convention (including the digital implementations
thereof) which are associated with online areas within the AOL Network and
the total appearance and impression substantially formed by the combination,
coordination and interaction of these elements.
AOL MEMBER(S). Authorized users of the AOL Network, including any
sub-accounts using the AOL Network under an authorized master account.
AOL SERVICE. The narrow-band U.S. version of the America Online-Registered
Trademark- brand service, specifically excluding (a) XXX.xxx or any other AOL
Interactive Site, (b) the international versions of an America Online service
(e.g., AOL Japan), (c) "Driveway," "AOL NetFind-TM-," "AOL Instant
Messenger-TM-," "Digital Cities", "NetMail-TM-" or any similar independent
product or service which may be offered by, through or with the U.S. version
of the America Online-Registered Trademark- brand service, (d) any
programming or content area offered by or through the U.S. version of the
America Online-Registered Trademark- brand service over which AOL does not
exercise complete operational control (including, without limitation, Content
areas controlled by other parties and member-created Content areas), (e) any
yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through the U.S. version of the America
Online-Registered Trademark- brand service, (f) any property, feature,
product or service which AOL or its affiliates may acquire subsequent to the
Effective Date and (g) any other version of an America Online service which
is materially different from the narrow-band U.S. version of the America
Online brand service, by virtue of its branding, distribution, functionality,
Content and services, including, without limitation, any co-branded version
of the service and any version distributed through any broadband distribution
platform or through any platform or device other than a desktop personal
computer.
AOL NETWORK. (i) The AOL Service and (ii) any other product or service
owned, operated, distributed or authorized to be distributed by or through
AOL or its Affiliates worldwide through which such party elects to offer the
Licensed Content (which may include, without limitation, AOL-related Internet
sites, "offline" information browsing products, international versions of the
AOL brand service, and CompuServe). For the avoidance of doubt, without
limitation, the AOL Network includes the AOL Australia Service, the AOL
Canada Service, the AOL France Service, the AOL Germany Service, the AOL
Japan Service and the AOL UK Service.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the
course of negotiating and implementing the Agreement, which is, or should be
reasonably understood to be, confidential or proprietary to the disclosing
Party, including, but not limited to, the content of negotiations between the
Parties, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost
and other unpublished financial information, product and business plans,
projections and marketing data. "Confidential Information" shall 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) required or
reasonably advised to be disclosed by law.
CONTENT. Text, images, video, audio (including, without limitation, music
used in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, pointers, technology and
software.
ICP INTERACTIVE SITE. Any interactive site or area (other than the Online
Area) which is managed, maintained or owned by ICP or its agents or to which
ICP provides and/or licenses Content , including, by way of example and
without limitation, (i) an ICP site on the World Wide Web portion of the
Internet (including the ICP Internet Site) or (ii) a channel or area
delivered through a "push" product such as the Pointcast Network or
interactive environment such as Microsoft's proposed "Active Desktop."
ICP INTERNET SITE. The Internet site and Content, currently located at
URL:xxxx://xxxxxxxxxxxx.xxx, which are managed, maintained or owned by ICP
or its agents or to which ICP licenses information, content or other
materials.
IMPRESSION. User exposure to (i) the page containing an ICP Presence or (ii)
a page of the ICP Internet Site, as the context may require, as such exposure
may be reasonably determined and measured by the reporting Party in
accordance with its standard methodologies and protocols.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i)
online or Internet connectivity services (e.g., an
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Internet service provider); (ii) a broad selection (i.e., not limited to a
narrow subject matter or product category nor directed primarily at a narrow
demographic audience) of aggregated third party interactive Content (or
navigation thereto) (e.g., an online service or search and directory
service); (iii) communications software capable of serving as the principal
means through which a user creates, sends and receives electronic mail or
real time online messages.
KEYWORD-TM- SEARCH TERMS. The Keyword-TM- online search terms made available
on the AOL Service for use by AOL Members, combining AOL's Keyword-TM- online
search modifier with a term or phrase specifically related to ICP (and
determined in accordance with the terms of this Agreement).
LICENSED CONTENT. All Content provided by ICP or its agents to AOL or its
Affiliates for distribution through the AOL Network in connection with the
subject matter of this Agreement.
LINKED INTERACTIVE SITE. Any site or area outside of the AOL Service which is
linked to the Online Area (through a "pointer" or similar link) in accordance
with the terms and conditions of this Agreement. For the avoidance of doubt,
the ICP Internet Site shall be deemed a Linked Interactive Site if the ICP
Internet Site is linked to the Online Area.
LINKED ICP INTERACTIVE SITE. Any ICP Interactive Site which is also a
Linked Interactive Site.
NEW MEMBER. Any person or entity (a) who registers for the AOL Network using
ICP's special promotion identifier and (b) who remains an AOL Member for two
paid billing cycles.
ONLINE AREA. The specific area within the AOL Network, as described in
Exhibit A, which shall be developed, managed or marketed by ICP pursuant to
this Agreement, including but not limited to the Licensed Content, message
boards, chat and other AOL Member-supplied content areas contained therein
(but excluding any Linked Interactive Sites other than sites which are
exclusively available to AOL Members).
PRODUCTS. Any product, good or service which ICP offers, sells or licenses
to AOL Members through (i) the Online Area, (ii) any Linked ICP Interactive
Site or (iii) an "offline" means (e.g., toll-free number) for receiving
orders related to specific offers within the Online Area requiring purchasers
to reference a specific promotional identifier or tracking code, including,
without limitation, products sold through surcharged downloads (to the extent
permitted hereunder).
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EXHIBIT C
I. ONLINE AREA
AOL TERMS OF SERVICE; UNSPECIFIED CONTENT. AOL shall have the right to
remove, or direct ICP to remove any Content from the Online Area or the
Welcome Mat (or remove the link from, or otherwise block Content contained
on, a Linked Interactive Site, which, as reasonably determined by AOL: (i)
violates AOL's then-standard Terms of Service (as set forth on the America
Online-Registered Trademark- brand service), the terms of this Agreement or
any other standard, written AOL policy; (ii) violates the warranties made by
ICP under the section below entitled "Management", or (iii) is not
specifically described on Exhibit A. To the extent ICP wishes to implement
any rules of conduct or terms of service related to the Online Area which are
separate from or supplementary to AOL's Terms of Service, ICP must obtain the
prior written approval of the AOL Legal Department.
MANAGEMENT. ICP shall review, delete, edit, create, update and otherwise
manage all Content available on or through the Online Area, any Linked ICP
Interactive Site and the Welcome Mat, including but not limited to the
Licensed Content and message boards, in a timely and professional manner and
in accordance with the terms of this Agreement, AOL's then-standard Terms of
Service and any generally applicable guidelines and service standards for
interactive content providers published by AOL. In managing the Online Area,
ICP agrees to refrain from editing or altering any opinion expressed by an
AOL Member within the Online Area, except in cases when ICP (i) has a good
faith belief that the Content in question violates an applicable law,
regulation, third party right or portion of AOL's Terms of Service or (ii)
obtains AOL's prior approval. ICP shall ensure that the Online Area is
reasonably current and well-organized, and shall employ all necessary
procedures to insure the accuracy of the Licensed Content. ICP warrants that
the Online Area, the Licensed Content, the Welcome Mat and any Linked
Interactive Sites (i) will conform to AOL's applicable Terms of Service; (ii)
will not infringe on or violate any copyright, trademark, patent or any
other third party right, including without limitation, any music performance
or other music related rights; and (iii) will not contain any Content which
violates any applicable law or regulation. AOL shall have no obligations
with respect to the Content available on or through the Online Area, the
Welcome Mat or any Linked Interactive Site, including, but not limited to,
any duty to review or monitor any such Content.
CHANGES TO AOL SERVICE. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of
the AOL Service and/or other portions of the AOL Network. If AOL eliminates
or modifies the screen(s) specified in Section 1.1 in a manner that
substantially modifies the nature of the placements for ICP described in
Section 1.1 in a material adverse fashion, AOL will work with ICP in good
faith to provide ICP with a comparable package of placements which are
reasonably satisfactory to ICP.
CONTESTS. ICP shall take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted or promoted through the Online
Area, a Linked Interactive Site or the Welcome Mat (a "Contest") complies
with all applicable federal, state and local laws and regulations. ICP shall
provide AOL with (i) at least thirty (30) days prior written notice of any
Contest and (ii) upon AOL's request, an opinion from ICP's counsel confirming
that any Contest complies with all applicable federal, state and local laws
and regulations; provided, however, that ICP shall not be required to give
AOL prior written notice of Contests are conducted in accordance with rules
and processes which are not materially different from rules and processes
previously approved in writing by AOL. Notwithstanding anything in this
Agreement to the contrary, AOL may, at its option, refuse to promote, or link
to any promotion for, any Contest if (without limiting the effect of any
other provision of this Agreement) AOL reasonably believes that such Contest
may subject AOL to legal or other liability.
AOL LOOK AND FEEL. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the Licensed Content or any Linked Interactive Site (the "AOL Frames").
AOL may, at its discretion, incorporate navigational icons, links and
pointers or other Content into such AOL Frames.
OPERATIONS. AOL shall be entitled to require reasonable changes to Licensed
Content or any Linked Interactive Site to the extent such Licensed Content
will, in AOL's good faith judgment, adversely affect technical operations of
the AOL Network.
DUTY TO INFORM. ICP shall promptly inform AOL of any information related to
the Licensed Content which could reasonably lead to a claim, demand or
liability of or against AOL and/or its Affiliates by any third party.
RESPONSE TO QUESTIONS/COMMENTS; CUSTOMER SERVICE. ICP shall respond promptly
and professionally to questions, comments, complaints and other reasonable
requests regarding the Licensed Content by AOL Members or on request by AOL,
and shall cooperate and assist AOL in promptly answering the same.
CLASSIFIEDS. To the extent ICP desires to implement any classifieds listing
features through the Online Area, ICP shall obtain AOL's prior written
approval. Such approval may be conditioned upon, among other things, ICP's
conformance with any then-applicable service-wide technical or other
standards related to online classifieds.
MESSAGE BOARDS. Any Content submitted by ICP or its agents within message
boards or any comparable vehicles will be subject to the license grant
relating to submissions to "public areas" set forth in the Proprietary Rights
section of the Terms of Service. ICP acknowledges
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that it has no rights or interest in AOL Member submissions to message boards
within the Online Area.
STATEMENTS THROUGH AOL NETWORK. ICP shall not make, publish, or otherwise
communicate through the AOL Network any deleterious remarks concerning AOL or
it Affiliates, directors, officers, employees, or agents (including, without
limitation, AOL's business projects, business capabilities, performance of
duties and services, or financial position) which remarks are based on the
relationship established by this Agreement or information exchanged
hereunder. This section is not intended to limit good faith editorial
statements made by ICP based upon publicly available information, or
information developed by ICP independent of its relationship with AOL and its
employees and agents.
ACCOUNTS. ICP shall be granted a sufficient number of accounts, in AOL's
discretion, for the America Online-Registered Trademark- brand service for
the exclusive purpose of enabling it and its agents to perform ICP's duties
under this Agreement. The accounts shall be of the type determined by AOL to
be necessary for ICP to perform its duties hereunder, and shall be subject to
such monthly subscription charges as AOL shall determine (not to exceed
monthly subscription charges generally available to the public for a similar
type of account), provided, however, that in any event ICP shall be
responsible for any surcharges, including, without limitation, all premium
charges, transaction charges and any applicable communication surcharges
incurred by any such account. ICP shall be responsible for the actions taken
under or through its accounts (which actions are subject to AOL's
then-standard Terms of Service) Upon the termination of this Agreement, all
accounts, related screen names and any associated usage credits or similar
rights shall automatically terminate. AOL shall have no liability for loss of
any data or content related to the proper termination of any account.
KEYWORDS. Any Keyword Search Terms to be directed to the Online Area shall be
(i) subject to availability for use by ICP and (ii) limited to the
combination of the Keyword-TM- search modifier combined with a registered
trademark of ICP. AOL reserves the right to revoke at any time ICP's use of
any Keyword Search Terms which do not incorporate registered trademarks of
ICP. ICP acknowledges that its utilization of a Keyword Search Term will not
create in it, nor will it represent it has, any right, title or interest in
or to such Keyword Search Term, other than the right, title and interest
Partner holds in ICP's registered trademark independent of the Keyword Search
Term. Without limiting the generality of the foregoing, ICP will not: (a)
attempt to register or otherwise obtain trademark or copyright protection in
the Keyword Search Term; or (b) use the Keyword Search Term, except for the
purposes expressly required or permitted under this Agreement. This Section
shall survive the completion, expiration, termination or cancellation of this
Agreement.
LAUNCH DATE. In the event that any terms contained herein relate to or depend
on the commercial launch date of the online area or other property
contemplated by this Agreement (the "Launch Date"), then it is the intention
of the Parties to record such Launch Date in a written instrument signed by
both Parties promptly following such Launch Date; provided that, in the
absence of such a written instrument, the Launch Date shall be as reasonably
determined by AOL based on the information available to AOL.
II. TRADEMARKS
TRADEMARK LICENSE. In designing and implementing the Promotional Materials
and subject to the other provisions contained herein, ICP shall be entitled
to use the following trade names, trademarks and service marks of AOL: the
"America Online-Registered Trademark-" brand service, "AOL-TM-"
service/software and AOL's triangle logo; and AOL and its Affiliates shall be
entitled to use the trade names, trademarks and service marks of ICP
associated with the Online Area (collectively, together with the AOL marks
listed above, the "Marks"); provided that each Party: (i) does not create a
unitary composite xxxx involving a Xxxx of the other Party without the prior
written approval of such other Party and (ii) displays symbols and notices
clearly and sufficiently indicating the trademark status and ownership of the
other Party's Marks in accordance with applicable trademark law and practice.
RIGHTS. Each Party acknowledges that its utilization of the other Party's
Marks will not create in it, nor will it represent it has, any right, title
or interest in or to such Marks other than the licenses expressly granted
herein. Each Party agrees not to do anything contesting or impairing the
trademark rights of the other Party.
QUALITY STANDARDS. Each Party agrees that the nature and quality of its
products and services supplied in connection with the other Party's Marks
shall conform to quality standards communicated in writing by the other Party
for use of its trademarks. Each Party agrees to supply the other Party, upon
request, with a reasonable number of samples of any Materials publicly
disseminated by such Party which utilize the other Party's Marks. Each Party
shall comply with all applicable laws, regulations and customs and obtain any
required government approvals pertaining to use of the other Party's Marks.
PROMOTIONAL MATERIALS/PRESS RELEASES. Each Party will submit to the other
Party, for its prior written approval, which shall not be unreasonably
withheld or delayed, any marketing, advertising, press releases or other
promotional materials related to the Online Area and/or referencing the other
Party and/or its trade names, trademarks and service marks (the "Promotional
Materials"); provided, however, that, following the initial public
announcement of the business relationship between the Parties in accordance
with the approval and other requirements contained herein, either Party's
subsequent factual reference to the existence of a business relationship
between AOL and ICP, including, without limitation, the availability of the
Online Area on the AOL Network, or use of screen shots of the Online Area (so
long as the AOL Network is clearly identified as the source of such screen
shots) for promotional purposes shall not require the approval of the other
Party. Once approved, the Promotional Materials may be used by a Party and
its affiliates for the purpose of promoting the Online Area and
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the content contained therein and reused for such purpose until such approval
is withdrawn with reasonable prior notice. In the event such approval is
withdrawn, existing inventories of Promotional Materials may be depleted.
INFRINGEMENT PROCEEDINGS. Each Party agrees to promptly notify the other
Party of any unauthorized use of the other Party's Marks of which it has
actual knowledge. Each Party shall have the sole right and discretion to
bring proceedings alleging infringement of its Marks or unfair competition
related thereto; provided, however, that each Party agrees to provide the
other Party, at such other Party's expense, with its reasonable cooperation
and assistance with respect to any such infringement proceedings.
III. 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, to grant the licenses granted hereunder 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; (iv)
such Party's Promotional Materials will neither infringe on any copyright,
U.S. patent or any other third party right nor violate any applicable law or
regulation and (v) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter
hereof which are not expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it
will take reasonable steps, at least substantially equivalent to the steps it
takes to protect its own proprietary information, during the term of this
Agreement, and for a period of three years following expiration or
termination of this Agreement, to prevent the duplication or disclosure of
Confidential Information of the other Party, other than by or to its
employees or agents who must have access to such Confidential Information to
perform such Party's obligations hereunder, who will each agree to comply
with this section. Notwithstanding the foregoing, either Party may issue a
press release or other disclosure containing Confidential Information without
the consent of the other Party, to the extent such disclosure is required by
law, rule, regulation or government or court order. In such event, the
disclosing Party will 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.
V. RELATIONSHIP WITH AOL MEMBERS
SOLICITATION OF SUBSCRIBERS. During the Term and for the two-year period
following the expiration or termination of this Agreement, neither ICP nor
its agents will use the AOL Network to (i) solicit or participate in the
solicitation of AOL Members when that solicitation is for the benefit of any
entity (including ICP) which could reasonably be construed to be or become in
competition with AOL or (ii) promote any services which could reasonably be
construed to be in competition with services available through AOL including,
but not limited to, services available through the Internet (e.g., an ICP
Interactive Site). ICP may not send any AOL Member unsolicited e-mail
communications on or through the AOL Network without a "Prior Business
Relationship." For purposes of this Agreement, a "Prior Business
Relationship" shall mean that the AOL Member has either (i) purchased
Products from ICP through the AOL Network or (ii) voluntarily provided
information to ICP through a contest, registration, or other communication,
which included clear and conspicuous notice to the AOL Member that the
information provided by the AOL Member could result in an e-mail being sent
to that AOL Member by ICP or its agents. A Prior Business Relationship does
not exist solely by virtue of an AOL Member's visit to the Online Area
(absent the additional elements described above). In any commercial e-mail
communications to AOL Members which are otherwise permitted hereunder, ICP
will provide the recipient with a prominent and easy means to "opt-out" of
receiving any future commercial e-mail communications from ICP.
COLLECTION OF MEMBER INFORMATION. ICP is prohibited from collecting AOL
Member screennames from public or private areas of the AOL Network, except as
specifically provided below. ICP shall ensure that any survey, questionnaire
or other means of collecting Member Information including, without
limitation, requests directed to specific AOL Member screennames and
automated methods of collecting screennames (an "Information Request")
complies with (i) all applicable laws and regulations, (ii) AOL's applicable
Terms of Service, and (iii) any privacy policies which have been issued by
AOL in writing during the Term (or, in the case of a Linked ICP Interactive
Site, ICP's standard privacy policies, to the extent such policies are
prominently published on the site and provide adequate notice and disclosure
to users regarding ICP's collection, use and disclosure of any user
information) (collectively, the "Applicable Privacy Policies"). Each
Information Request shall clearly and conspicuously specify to the AOL
Members at issue the purpose for which Member Information collected through
the Information Request shall be used (the "Specified Purpose").
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USE OF MEMBER INFORMATION. ICP shall restrict use of the Member Information
collected through an Information Request to the Specified Purpose. In no
event shall ICP (i) provide AOL Member names, screennames, addresses or other
identifying information ("Member Information") to any third party (except to
the extent specifically (a) permitted under the Applicable Privacy Policies
or (b) authorized by the AOL Members in question) or (ii) otherwise use any
Member Information in contravention of the above section regarding
"Solicitation of Members."
E-MAIL NEWSLETTERS. Any e-mail newsletters sent to AOL Members by ICP or
its agents shall (i) be subject to AOL's policies on use of the e-mail
functionality, including but not limited to AOL's policy on unsolicited bulk
e-mail, (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.
VI. TREATMENT OF CLAIMS
LIABILITY. THE LIABILITY OF STRAIGHT ARROW PUBLISHERS CO., L.P. AND JAM TV
CORPORATION HEREUNDER SHALL BE JOINT AND SEVERAL; PROVIDED, HOWEVER, THAT JAM
TV CORPORATION, AND NOT STRAIGHT ARROW PUBLISHERS CO. L.P. SHALL BE
RESPONSIBLE FOR THE PAYMENTS SET FORTH IN SECTIONS 1.5 AND 33. IN NO EVENT
SHALL STRAIGHT ARROW PUBLISHERS CO. L.P. BE RESPONSIBLE FOR THE PAYMENTS SET
FORTH IN SECTIONS 1.5 AND 33. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY"
SECTION, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM THE USE OF OR INABILITY TO USE THE AOL NETWORK OR ONLINE AREA OR
ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT AS PROVIDED BELOW IN
THE "INDEMNITY" SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR
MORE THAN THE AGGREGATE AMOUNTS PAYABLE HEREUNDER AS OF THE DATE LIABILITY
ACCRUED.
NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK,
THE ONLINE AREA OR ANY AOL PUBLISHING TOOLS, INCLUDING ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY
REGARDING THE PROFITABILITY OF THE ONLINE AREA.
INDEMNITY. Either Party will defend, indemnify, save and hold harmless the
other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims, demands, liabilities, costs or expenses, including reasonable
attorneys' fees ("Liabilities"), resulting from the indemnifying Party's
material breach of any duty, representation, or warranty of this Agreement.
If a Party entitled to indemnification hereunder (the "Indemnified Party")
becomes aware of any matter it believes is indemnifiable hereunder involving
any claim, action, suit, investigation, arbitration or other proceeding
against the Indemnified Party by any third party (each an "Action"), the
Indemnified Party shall give the other Party (the "Indemnifying Party")
prompt written notice of such Action. Such notice shall (i) provide the
basis on which indemnification is being asserted and (ii) be accompanied by
copies of all relevant pleadings, demands, and other papers related to the
Action and in the possession of the Indemnified Party. The Indemnifying
Party shall have a period of ten (10) days after delivery of such notice to
respond. If the Indemnifying Party elects to defend the Action or does not
respond within the requisite ten (10) day period, the Indemnifying Party
shall be obligated to defend the Action, at its own expense, and by counsel
reasonably satisfactory to the Indemnified Party. The Indemnified Party
shall cooperate, at the expense of the Indemnifying Party, with the
Indemnifying Party and its counsel in the defense and the Indemnified Party
shall have the right to participate fully, at its own expense, in the defense
of such Action. If the Indemnifying Party responds within the required ten
(10) day period and elects not to defend such Action, the Indemnified Party
shall be free, without prejudice to any of the Indemnified Party's rights
hereunder, to compromise or defend (and control the defense of) such Action.
In such case, the Indemnifying Party shall cooperate, at its own expense,
with the Indemnified Party and its counsel in the defense against such Action
and the Indemnifying Party shall have the right to participate fully, at its
own expense, in the defense of such Action. Any compromise or settlement of
an Action shall require the prior written consent of both Parties hereunder,
such consent not to be unreasonably withheld or delayed.
ACKNOWLEDGMENT. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION
BETWEEN THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE
TRANSACTIONS CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED
TO WARRANTIES AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT
THE CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI
SHALL BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE
OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
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VII. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable
efforts to promptly resolve any claim, dispute, claim, controversy or
disagreement (each a "Dispute") between the Parties or any of their
respective subsidiaries, affiliates, successors and assigns under or related
to this Agreement or any document executed pursuant to this Agreement or any
of the transactions contemplated hereby. If the Parties cannot resolve the
Dispute within such timeframe, the Dispute shall be submitted to the
Management Committee for resolution. For ten (10) days after the Dispute was
submitted to the Management Committee, the Management Committee shall have
the exclusive right to resolve such Dispute; provided further that the
Management Committee shall have the final and exclusive right to resolve
Disputes arising from any provision of this Agreement which expressly or
implicitly provides for the Parties to reach mutual agreement as to certain
terms. If the Management Committee is unable to amicably resolve the Dispute
during the ten (10) day period, then the Management Committee will consider
in good faith the possibility of retaining a third party mediator to
facilitate resolution of the Dispute. In the event the Management Committee
elects not to retain a mediator, the Dispute will be subject to the
resolution mechanisms described below. "Management Committee" shall mean a
committee made up of a senior executive from each of the Parties for the
purpose of resolving Disputes under this Section and generally overseeing the
relationship between the Parties contemplated by this Agreement. Neither
Party shall seek, nor shall be entitled to seek, binding outside resolution
of the Dispute unless and until the Parties have been unable to amicably
resolve the dispute as set forth in this paragraph (a) and then, only in
compliance with the procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights,
including but not limited to intellectual property and confidentiality, and
(ii) any provision of this Agreement which expressly or implicitly provides
for the Parties to reach mutual agreement as to certain terms (which shall be
resolved by the Parties solely and exclusively through amicable resolution as
set forth in paragraph (a), any Dispute not resolved by amicable resolution
as set forth in paragraph (a) shall be governed exclusively and finally by
arbitration. Such arbitration shall be conducted by the American Arbitration
Association ("AAA") in Washington, D.C. and shall be initiated and conducted
in accordance with the Commercial Arbitration Rules ("Commercial Rules") of
the AAA, including the AAA Supplementary Procedures for Large Complex
Commercial Disputes ("Complex Procedures"), as such rules shall be in effect
on the date of delivery of a demand for arbitration ("Demand"), except to the
extent that such rules are inconsistent with the provisions set forth herein.
Notwithstanding the foregoing, the Parties may agree in good faith that the
Complex Procedures shall not apply in order to promote the efficient
arbitration of Disputes where the nature of the Dispute, including without
limitation the amount in controversy, does not justify the application of
such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party
shall name an arbitrator within ten (10) days after the delivery of the
Demand. The two arbitrators named by the Parties may have prior
relationships with the naming Party, which in a judicial setting would be
considered a conflict of interest. The third arbitrator, selected by the
first two, shall be a neutral participant, with no prior working relationship
with either Party. If the two arbitrators are unable to select a third
arbitrator within ten (10) days, a third neutral arbitrator will be appointed
by the AAA from the panel of commercial arbitrators of any of the AAA Large
and Complex Resolution Programs. If a vacancy in the arbitration panel occurs
after the hearings have commenced, the remaining arbitrator or arbitrators
may not continue with the hearing and determination of the controversy,
unless the Parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law,
shall govern the arbitrability of all Disputes. The arbitrators shall allow
such discovery as is appropriate to the purposes of arbitration in
accomplishing a fair, speedy and cost-effective resolution of the Disputes.
The arbitrators shall reference the Federal Rules of Civil Procedure then in
effect in setting the scope and timing of discovery. The Federal Rules of
Evidence shall apply IN TOTO. The arbitrators may enter a default decision
against any Party who fails to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages
only. Any award by the arbitrators shall be accompanied by a written opinion
setting forth the findings of fact and conclusions of law relied upon in
reaching the decision. The award rendered by the arbitrators shall be final,
binding and non-appealable, and judgment upon such award may be entered by
any court of competent jurisdiction. The Parties agree that the existence,
conduct and content of any arbitration shall be kept confidential and no
Party shall disclose to any person any information about such arbitration,
except as may be required by law or by any governmental authority or for
financial reporting purposes in each Party's financial statements.
(f) Each Party shall pay the fees of its own attorneys, expenses of
witnesses and all other expenses and costs in connection with the
presentation of such Party's case (collectively, "Attorneys' Fees"). The
remaining costs of the arbitration, including without limitation, fees of the
arbitrators, costs of records or transcripts and administrative fees
(collectively, "Arbitration Costs") shall be born equally by the parties.
Notwithstanding the foregoing, the arbitrators may modify the allocation of
Arbitration Costs and award Attorneys' Fees in those cases where fairness
dictates a different allocation of Arbitration Costs between the Parties and
an award of Attorneys' Fees to the prevailing Party as determined by the
arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively,
"Non-Arbitration Claims") shall be brought in a court of competent
jurisdiction in the Commonwealth of Virginia. Each Party irrevocably
consents to the exclusive jurisdiction of the courts of the Commonwealth of
Virginia
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and the federal courts situated in the Commonwealth of Virginia, over any and
all Non-Arbitration Claims and any and all actions to enforce such claims or
to recover damages or other relief in connection with such claims or to
enforce a judgment rendered in an arbitratrion proceeding.
VIII. MISCELLANEOUS
AUDITING RIGHTS. Each Party shall maintain complete, clear and accurate
records of all expenses, revenues, fees, transactions and related
documentation (including agreements) in connection with the performance of
this Agreement ("Records"). All such Records shall be maintained for a
minimum of five (5) years following termination of this Agreement. For the
sole purpose of ensuring compliance with this Agreement, each Party shall
have the right, at its expense, to direct an independent certified public
accounting firm subject to strict confidentiality restrictions to conduct a
reasonable and necessary copying and inspection of portions of the Records of
the other Party which are directly related to amounts payable to the Party
requesting the audit pursuant to this Agreement. Any such audit may be
conducted after twenty (20) business days prior written notice, subject to
the following. Such audits shall not be made more frequently than once every
twelve months. No such audit of AOL shall occur during the period beginning
on June 1 and ending October 1. In lieu of providing access to its Records
as described above, a Party shall be entitled to provide the other Party with
a report from an independent certified public accounting firm confirming the
information to be derived from such Records.
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.
INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the
other Party. Neither Party shall have any right, power or authority to enter
into any agreement for or on behalf of, or incur any obligation or liability
of, or to otherwise bind, the other Party. This Agreement shall not be
interpreted or construed to create an association, agency, joint venture or
partnership between the Parties or to impose any liability attributable to
such a relationship upon either Party.
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 electronic mail on the AOL Network (to screenname
"XXXXxxxxx@XXX.xxx" in the case of AOL) or 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 Senior Vice President for
Business Affairs (fax no. 000-000-0000) 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 ICP, except as otherwise
specified herein, the notice address shall be the address for ICP set forth
in the first paragraph of this Agreement, with the other relevant notice
information, including the recipient for notice and, as applicable, such
recipient's fax number or AOL e-mail address, to be as reasonably identified
by AOL.
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.
RETURN OF INFORMATION. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or
destroy (at the option of the Party receiving the request) all confidential
information, documents, manuals and other materials specified the other Party.
SURVIVAL. Section 1.3.2 of this Agreement, and Sections IV, V, VI, and VII
of this Exhibit C, shall survive the completion, expiration, termination or
cancellation of this Agreement.
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. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or
continuing performance of this Agreement.
ASSIGNMENT. ICP shall not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL.
Assumption of this Agreement by any Successor to ICP (including,
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without limitation, by way of merger or consolidation) 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.
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.
APPLICABLE LAW; JURISDICTION. This Agreement shall be interpreted, construed
and enforced in all respects in accordance with the laws of the Commonwealth
of Virginia except for its conflicts of laws principles. Each Party
irrevocably consents to the exclusive jurisdiction of the courts of the
Commonwealth of Virginia and the federal courts situated in the Commonwealth
of Virginia, in connection with any action to enforce the provisions of this
Agreement, to recover damages or other relief for breach or default under
this Agreement, or otherwise arising under or by reason of this Agreement.
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.
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.
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EXHIBIT D
FORMAT FOR ICP'S PRESENCE ON THE AOL NETWORK
- Any ICP trademark or logo
- Any headline or picture from ICP content
- Any teaser, icon, link to the Online Area, ICP Internet Site or
Welcome Mat
- Any other Content which originates from, describes or promotes ICP
or ICP's Content
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EXHIBIT E
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS
Pursuant to Section 4 of the Interactive Services Agreement between
______________ ("ICP") and America Online, Inc. ("AOL"), dated as of
_________________, 1997 (the "Agreement"), the following report is delivered
to AOL for the month ending __________ (the "Month"):
I. PROMOTIONAL COMMITMENTS
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Month:
TYPE OF DATE(s) OF DURATION/CIRCULATION RELEVANT
PROMOTION PROMOTION OF PROMOTION CONTRACT SECTION
--------------------------------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------------------------------
3.
IN WITNESS WHEREOF, this Certificate has been executed this ___ day of
___________, 199_.
-------------------------------------
By:
---------------------------------
Print Name:
-------------------------
Title:
------------------------------
Date:
-------------------------------
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EXHIBIT F
OPERATING STANDARDS
1. HOSTING; CAPACITY. ICP will provide all computer hardware (e.g.,
servers, routers, network devices, switches and associated
hardware) in an amount necessary to meet anticipated traffic
demands, adequate power supply (including generator back-up) and
HVAC, adequate insurance, adequate service contracts and all
necessary equipment racks, floor space, network cabling and power
distribution to support the ICP Internet Site. ICP is fully
responsible for the maintenance and the day-to-day operation of the
ICP Internet Site implementation. ICP will provide AOL with a
detailed Network diagram. In addition, ICP will provide AOL with
detailed information regarding separate file downloads available
from the ICP Internet Site, including file size, type and
download/installation procedures.
2. SPEED; ACCESSIBILITY. ICP will ensure that the performance and
availability of the ICP Internet Site (a) is monitored on a
continuous, 24/7 basis and (b) remains reasonably competitive in
all material respects with the performance and availability of
other similar sites based on similar form technology. ICP will use
commercially reasonable efforts to ensure that: (a) the
functionality and features within the ICP Internet Site are
optimized for the client software then in use by AOL Members; and
(b) the ICP Internet Site is designed and populated in a manner
that minimizes delays when AOL Members attempt to access such site.
At a minimum, ICP will ensure that ICP Internet Site's data
transfer initiates within fewer than fifteen (15) seconds on
average. Prior to launch of any promotions described herein, ICP
will permit AOL to conduct performance and/or load testing of the
ICP Internet Site (in person or through remote communications)
until AOL is reasonably satisfied that launch can occur, to include
but not be limited to the following areas: AOL Compatibility
Testing (AOL Client V3.0, Windows 95/Macintosh, Browser: MSIE
3.X/MSIE 2.1; AOL Client V4.0, Windows 95/Macintosh, Browser: MSIE
3.X); Caching Implementation; Graphics Quality; User Interface and
Functional Testing; Review of Advanced Web Technologies; Load
Testing; Website Architecture (Hardware, Network Configuration
Software - Web Servers, Databases, etc.); Network Redundancy and
Reliability; Performance Thresholds (Network Bandwidth, Web Server
Capacity, Simultaneous Users); and Electronic Commerce (Encryption
Validation, Encryption Technology -SSL V2/V3, PCT, Commerce
Implementation Review - Cookies, iCat, Webforce, etc., Facility
Physical Security, Safeguards Related to Private Customer
Information).
3. USER INTERFACE. ICP will maintain a graphical user interface
within the ICP Internet Site that is competitive in all material
respects with interfaces of other similar sites based on similar
form technology. AOL reserves the right to review and approve the
user interface and site design prior to launch of the Promotions
and to conduct focus group testing to assess compliance with
respect to such consultation and with respect to ICP's compliance
with the preceding sentence.
4. SERVICE LEVEL RESPONSE. ICP agrees to use commercially reasonable
efforts to provide the following service levels in response to
problems with or improvements to the ICP Internet Site:
-For material functions of software that are or have become
substantially inoperable (e.g., inability to access website or
conduct transactions), ICP will provide a bug fix or workaround
within four (4) hours after the first report of such error to AOL
and the ICP.
-For functions of the software that are impaired or otherwise fail
to operate in accordance with agreed upon specifications (e.g.,
search engine), ICP will provide a bug fix or workaround within
twenty-four (24) hours after the first report of such error to AOL
and the ICP.
-For errors disabling only certain non-essential functions (e.g.,
broken links or noncritical applications), ICP will provide a bug
fix or workaround within fourteen (14) days after the first report
of such error to AOL and the ICP.
-For all other errors, ICP will address these requests on a
case-by-case basis as soon as reasonably feasible.
5. MONITORING. ICP will provide AOL with ICP's detailed escalation
procedures (e.g., contact names and notification mechanisms such as
email, phone, page, etc.) and notification of any scheduled or
unscheduled downtimes. AOL Network Operations Center will work with
ICP's designated technical contacts in the event of any performance
malfunction or other emergency related to the ICP Internet Site and
will either assist or work in parallel with ICP's contact using ICP
tools and procedures, as applicable. The Parties will develop a
process to monitor performance and member behavior with respect to
access, capacity, security and related issues both during normal
operations and during special promotions/events.
6. TELECOMMUNICATIONS. The Parties agree to explore encryption
methodology to secure data communications between the Parties' data
centers such that no private member information requested by the
ICP will be transferred unencrypted. The network between the
Parties will be configured such that no single component failure
will significantly impact AOL Members. The network will be sized
such that no single line runs at more than 70% average utilization
for a 5-minute peak in a daily period.
7. SECURITY REVIEW. ICP and AOL will work together to perform an
initial security review of, and to perform tests of, the ICP
system, network, and service security in order to evaluate the
security risks and provide recommendations to ICP, including
periodic follow-up reviews as reasonably required by ICP or AOL.
ICP will use commercially reasonable best efforts to fix any
security risks or breaches of security as may be identified by
AOL's Operations Security. Specific services to be performed on
behalf of AOL's Operations Security team will be as determined by
AOL in its sole discretion.
8. TECHNICAL PERFORMANCE. ICP will perform the following technical
obligations (and any reasonable updates thereto from time to time
by AOL):
-ICP will design the ICP Internet Site to support the Windows
version of the Microsoft Internet Explorer 3.0 and 4.0 browser, the
Macintosh version of the Microsoft Internet Explorer 2.1 and 3.0,
and make commercially reasonable efforts to support all other AOL
browsers listed at: "xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxXxxxx.xxxx."
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-ICP will configure the server from which it serves the site to
examine the HTTP User-Agent field in order to identify the "AOL
Member-Agents" listed at:
"xxxx://xxxxxxxxx.xxxx.xxx.xxx/Xxxx0Xxxx.xxxx."
-ICP will design its site to support HTTP 1.0 or later protocol as
defined in RFC 1945 (available at
"xxxx://xx.xxxxxxxx.xxx/xxx/xxx0000.xxxx") and to adhere to AOL's
parameters for refreshing cached information listed at
XXXX://XXXXXXXXX.XXXX.XXX.XXX/XXXXXXXXX.XXXX.
9. AOL INTERNET PRODUCTS PARTNER SUPPORT. AOL will provide ICP with
access to the standard online resources, standards and guidelines
documentation, technical phone support, monitoring and after-hours
assistance that AOL makes generally available to similarly situated
web-based partners. AOL support will not, in any case, be involved
with content creation on behalf of ICP or support for any
technologies, databases, software or other applications which are
not supported by AOL or are related to any ICP area other than the
ICP Internet Site. Support to be provided by AOL is contingent on
ICP providing to AOL demo account information (where applicable), a
detailed description of the ICP Internet Site's software, hardware
and network architecture and access to the ICP Internet Site for
purposes of such performance and load testing as AOL elects to
conduct. As described elsewhere in this Agreement, ICP is fully
responsible for all aspects of hosting and administration of the
ICP Internet Site and must ensure that the site satisfies the
specified access and performance requirements as outlined in this
Exhibit.
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10.
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