Interactive Services Agreement - America Online Inc. and eDiets.com Inc.
Execution Copy
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
This Interactive Services Agreement (this "Agreement"), effective as of
November 23, 2000 (the "Effective Date"), is made and entered into by and
between America Online, Inc. ("AOL"), a Delaware corporation, with its principal
offices at 22000 AOL Way, Dulles, Virginia 20166, and eDiets.com, Inc.
("Interactive Content Provider" or "ICP"), a Delaware corporation, with its
principal offices at 3467 Hillsboro Blvd. Deerfield Beach, FL 33442 (each a
"Party" and collectively the "Parties").
INTRODUCTION
AOL and ICP each desires that AOL provide access to the Customized Site
and Customized Programming through the AOL Network, subject to the terms and
conditions set forth in this Agreement. To the extent this Agreement requires
performance by a subsidiary of AOL, AOL, in its capacity as stockholder of such
subsidiary, shall cause such subsidiary to perform in accordance with this
Agreement. Capitalized terms used but not otherwise defined in this Agreement
shall be as defined on Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 Promotion and Distribution. Beginning on a mutually agreed
upon date(s) after the Effective Date, AOL shall provide ICP
with the placements set forth on Exhibit A-1. The placements
described on Exhibit A-1 and any other placements or
promotions provided by AOL to ICP shall be referred to as the
"Placements." The Placements shall link to the Customized Site
and/or Customized Programming.
1.2 Programming and Content. The Customized Site and Customized
Programming shall consist of the Content described on the
programming plan attached as Exhibit A-2 (the "Programming
Plan"). The inclusion of any additional Content (other than
advertisements, links or promotions permitted under Section 5)
within the Customized Site and/or Customized Programming
(including, without limitation, any features, functionality or
technology) not expressly described on Exhibit A shall be
subject to AOL's prior written approval. ICP shall ensure that
the Licenced Content within the Customized Site and Customized
Programming is equal to or better than the Content distributed
by ICP through any other ICP Interactive Site in all material
respects, including without limitation, quality, breadth,
depth, timeliness, functionality, features, prices of products
and services and terms and conditions; provided that any
changes to the Customized Site, Customized Programming or the
Licenced Content necessary to comply with this sentence shall
be subject to AOL's review and approval. Notwithstanding the
foregoing, ICP shall not be required to comply with the
immediately preceding sentence to the extent such compliance
would require ICP to violate another provision of this
Agreement.
1.3 Licence. ICP hereby grants AOL a nonexclusive worldwide
licence to use, market, licence, store, distribute, reproduce,
display, adapt, communicate, perform, translate, transmit, and
promote the Customized Site, the Customized Programming and
the Licenced Content (or any portion thereof) through the AOL
Network as AOL may determine in its sole discretion, including
without limitation the right to integrate Content from the
Customized Site and/or Customized Programming by linking to
specific areas thereon, provided that the link to any such
Content on the AOL Network shall conform to the specifications
of an ICP Presence. The licence granted hereunder shall be
non-transferable to any third party except (a) in connection
with an assignment of this Agreement by AOL as provided in the
"Assignment" section of Exhibit C, and (b) AOL may sublicence
all of its rights under such licence to (i) AOL Members as a
part of a AOL membership, and (ii) an Affiliate.
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1.4 Management.
1.4.1 ICP Management Obligations. ICP shall design, create,
edit, manage, review, update (on a daily basis or as
otherwise specified herein), and maintain the
Customized Site, Customized Programming and the
Licenced Content in a timely and professional manner
and in accordance with the terms of this Agreement
and shall keep the Licenced Content current, accurate
and well-organized at all times. Except as
specifically provided for herein, AOL shall have no
obligations of any kind with respect to the
Customized Site or Customized Programming. ICP shall
be responsible for any hosting or communication costs
associated with the Customized Site and Customized
Programming.
1.4.2 Compliance. In the event ICP fails to comply with any
material term of this Agreement, including without
limitation ICP's obligations under this Section 1.4,
its promotional obligations under Section 2, the
customization and integrity requirements of Section
5, or its obligations to provide the Content set
forth on the Programming Plan, AOL will have the
right (in addition to any other remedies available to
AOL hereunder) to decrease the carriage and promotion
it provides to ICP hereunder and/or to decrease or
cease any other contractual obligation of AOL
hereunder until such time as ICP corrects its
non-compliance, in which event AOL will be relieved
of the proportionate amount of any carriage,
promotional and/or Impressions commitments made to
ICP by AOL hereunder corresponding to such decrease
in carriage and promotion. AOL will make commercially
reasonable efforts to give ICP prior notice before
ceasing or decreasing ICP's carriage and/or
promotion. ICP hereby acknowledges, however, that AOL
may need to cease or decrease ICP's carriage and/or
promotion without giving prior notice.
1.5 Carriage Fee. ICP shall pay AOL $10,921,000 as set forth on
Exhibit D.
1.6 Impressions Target. AOL shall provide ICP with at least
[___________] Impressions from the Placements set forth in
Exhibit A-1, the AOL Network Screens, and the placement of ICP
Presences in the fitness, diet and/or nutrition areas of the
AOL Network (the "Impressions Target"), provided that only ICP
Presences that contain a link to the Customized Site or
Customized Programming will count against the Impressions
Target. Of the [___________] Impressions referenced above, AOL
shall provide ICP with at least 120,946,884 Impressions from
the advertising placements as set forth in Exhibit A-1.2 (the
"Media Impressions Target"). AOL shall make commercially
reasonable efforts to deliver the Impressions evenly
throughout the initial term of the Agreement, taking into
account seasonal fluctuations. In the event that AOL fails to
deliver a total of [___________] Impressions during the first
fourteen (14) months of the initial term of this Agreement,
then AOL shall use commercially reasonable efforts to deliver
the "undelivered Impressions" within the next six (6) months
of the term by providing ICP with additional Placements on AOL
Network Screens and/or in the fitness, diet and/or nutrition
areas of the AOL Network. In the event that AOL fails to
deliver the total [___________] Impressions by the end of the
initial term of this Agreement, then the Term shall be
extended for up to six (6) months without additional carriage
fees payable by ICP and may provide additional Placements on
the AOL Network Screens and/or in the fitness, diet and/or
nutrition areas of the AOL Network until the Impressions
Target is met. AOL shall not count more than 15,500,000
Impressions generated on the AOL Network Screens against the
Impressions Target (exclusive of the Media Impressions
Target). During any Extension Term AOL shall not count more
than 7,750,000 Impressions generated on the AOL Network
Screens against the Impressions Target for the Extension Term.
1.7 Member Benefits. ICP will generally promote through the
Customized Site any special or promotional offers made
available by or on behalf of ICP through any ICP Interactive
Site or any other distribution channel. In addition, ICP shall
promote through the Customized Site on a regular and
consistent basis the following special offer: a 10-15%
discount on ICP's diet subscription plans permitted to be
offered under this Agreement, which special offer shall be
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exclusively available to AOL Members ("AOL Exclusive Offers").
ICP shall, at all times, feature at least one AOL Exclusive
Offer for AOL Members (except as otherwise mutually agreed
upon by the Parties). ICP will provide AOL with reasonable
prior notice of AOL Exclusive Offers and other special offers
so that AOL can, in its editorial discretion, market the
availability of such offers. In general, the discounts
referenced above will be no lower than any other discount that
ICP offers on any other ICP Interactive Site. AOL acknowledges
that ICP may offer higher discounts on occasion, but ICP must
make those discounts available to AOL Members or provide a
comparable offer to AOL Members.
1.8 Financial Representation. ICP hereby represents and warrants
that it will have the following cash reserves on hand by each
of the respective dates: (i) seven hundred fifty thousand
dollars ($750,000.00) as of the March 31, 2001; (ii) one
million dollars ($1,000,000.00) as of June 30, 2001; (iii) one
million two hundred fifty thousand dollars ($1,250,000.00) as
of September 30, 2001; and (iv) one million five hundred
thousand dollars ($1,500,000.00) as of December 31, 2001 and
for the remainder of the Term of this Agreement. In the event
that ICP's cash balance falls below any of the foregoing cash
reserve targets corresponding to the dates set forth above,
AOL shall have the right to terminate this Agreement and
retain all monies received from ICP without any additional
obligations if ICP does not cure such cash reserve deficits
within thirty (30) days from receiving written notice from
AOL. ICP shall provide AOL written confirmation of its cash
reserve balance within five (5) business days of AOL's request
for such information. ICP shall provide AOL with quarterly
financial statements, including without limitation, 10-Q SEC
filings, to document ICP's compliance with this Section 1.8.
1.9 Payment Acceleration. In consideration for AOL not requiring
the payment of three quarters of advance payments on the
Effective Date, ICP hereby agrees to the following payment
acceleration terms: ICP shall pay AOL five hundred thousand
dollars ($500,000) for each one million dollars ($1,000,000)
that ICP receives after January 1, 2001 through any debt
and/or equity infusion in excess of one million dollars
($1,000,000) until such time as AOL has at least three
quarters of advance payments from ICP.
2. CROSS-PROMOTION
2.1 Cooperation. Each Party shall cooperate with and reasonably
assist the other Party in supplying material for marketing and
promotional activities.
2.2 Interactive Site.
2.2.1 On the first screen of the Generally Available Site,
ICP shall include one prominent, actionable,
non-rotating graphical promotional buttons (at least
90 x 30 pixels or 70 x 70 pixels in size either (i)
through which users can register for the AOL Service
or download the AOL Software (the "AOL Promo") or
(ii) promoting the Netscape browser, respectively
(the "Netscape Promo" and, collectively with the AOL
Promo, the "Site Promos"), as follows:
(a) AOL will provide the creative content to be used
in the Site Promos. ICP shall post (or update, as the
case may be) the creative content supplied by AOL
within the spaces for any Site Promo within five (5)
days of its receipt of such content from AOL. AOL may
elect to have either or both Site Promos served to
the ICP Interactive Site from an ad server controlled
by AOL or its agent, in which event ICP shall take
all reasonable operational steps necessary to
facilitate such ad serving arrangement, including,
without limitation, inserting HTML code designated by
AOL on the pages of the ICP Interactive Site on which
such Site Promo will appear.
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(b) ICP's undertakings related to the AOL Promo shall
be governed by that certain AOL Partner Affiliate
Network Agreement (the "Affiliate Agreement")
available at
http://affiliate.aol.com/affiliate/welcome.html, a
copy of which will be provided to ICP upon request.
ICP acknowledges that it has reviewed the Affiliate
Agreement and hereby agrees to be bound by it. For
purposes of the Affiliate Agreement, (a) the term
"Fee" as used therein means the then-standard fee
being paid thereunder, and (b) the term "Website" as
used therein means the ICP Interactive Site.
Notwithstanding anything to the contrary in the
Affiliate Agreement, ICP shall be obligated to
display the AOL Promo at all times during the Term.
In addition, at ICP's option, ICP may participate in
the Netscape Affiliate browser distribution
programme, in which event ICP shall receive the
standard bounties under the Netscape Affiliate
browser distribution programme in connection with the
sale of Netscape browser software through the
Netscape Promo. The terms and conditions of the
Netscape Affiliate browser distribution programme are
as set forth at
http://www.netscape.com/affiliate/welcome.html. The
Site Promos shall be displayed for the duration of
the Term notwithstanding anything to the contrary in
the Affiliate Agreement or in the terms and
conditions of the Netscape Affiliate browser
distribution programme.
2.3 Other Media. In ICP's television, radio, print and "out of
home" (e.g., buses and billboards, point of purchase and other
"place-based" promotions) advertisements and in any
publications, programmes, features or other forms of offline
media over which ICP exercises at least partial editorial
control (collectively, "Offline Media") and in which an ICP
Interactive Site or ICP's online Content is referenced,
mentioned or promoted (including, without limitation, by
listing the "URL" thereof), ICP will include specific
references or mentions of the availability of the Customized
Site through the AOL Network by including a listing of the AOL
"keyword" for the Customized Site, which listing shall conform
to the keyword guidelines and logo usage guidelines attached
hereto as Exhibit F. All such references or mentions of AOL,
and the use of AOL's trademarks, trade names and service marks
in connection therewith, shall be in accordance with Section
II of Exhibit C. During the Term, ICP shall not promote in
Offline Media any other Internet keyword, "real name" or other
similar search term or address for an ICP Interactive Site or
ICP's online Content, other than the URL.
2.4 Preferred Access Provider. ICP shall not promote any other
Interactive Service as a preferred means of accessing ICP's
Content, or otherwise promote any other Interactive Service
more prominently than it promotes AOL.
3. REPORTING; PAYMENT.
3.1 AOL Usage Reporting. AOL shall make available to ICP a monthly
report specifying for the prior month aggregate usage and
Impressions with respect to ICP's presence on the AOL Network,
which are similar in substance and form to the reports
provided by AOL to other content partners similar to ICP.
3.2 Customized Site Reporting. ICP will supply AOL with monthly
reports which reflect total impressions by AOL Members to the
Customized Site during the prior month, and the number of and
dollar value associated with the transactions involving AOL
Members. ICP represents that all URLs related to the
Customized Site are listed on Exhibit A-2 and ICP shall
provide AOL with an update of such list promptly upon any
change thereto. ICP shall provide monthly reports to AOL
detailing the number of new subscribers obtained by ICP
through the Customized Site and Customized Programming during
the prior month. AOL and ICP shall mutually agree upon a
reporting mechanism that accurately reflects the number of new
subscribers that ICP has obtained through the Customized Site
and Customized Programming. After AOL has received at least
three (3) monthly reports from ICP, the Parties shall mutually
agree whether those reports are sufficient or whether
additional information needs to be included in subsequent
reports.
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3.3 Payment Schedule. Except as otherwise specified herein, 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 sixty (60) 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 this 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).
3.4 Payments. All payments by ICP hereunder shall be made by
check, in accordance with the schedule set forth in Section
1.5 without need for invoice, in immediately available,
non-refundable U.S. funds, either (a) mailed to America
Online, ATTN: Accounts Receivable, General Post Office, PO Box
5696, New York, NY 10087-5696, or (b) if by overnight courier,
to Chase Manhattan Bank, 55 Water Street, Lockbox Dept. Room
#826, New York, NY 10041, Lockbox #5696 (or such other address
of which AOL shall give ICP written notice). ICP shall include
in each payment a reference to ICP and ICP's customer number
provided by AOL and a brief description of the purpose of the
payment (e.g., "first quarterly payment pursuant to
Interactive Services Agreement dated November 15, 2000"). ICP
shall provide AOL, at the time of ICP's first payment to AOL
under this Agreement, with the name, title, address, telephone
number, fax number and e-mail address of the officer of ICP
who will serve as AOL's point-of-contact for any billing
questions.
4. ADVERTISING AND MERCHANDISING
4.1 AOL Network Advertising Inventory. AOL owns all right, title
and interest in and to the advertising and promotional spaces
within the AOL Network including, without limitation, the AOL
Frames and shall have the right to all revenues therefrom. The
specific advertising inventory within any AOL forms or pages,
including such AOL Frames, shall be as reasonably determined
by AOL.
4.2 Sale of Advertisements. AOL hereby grants ICP the exclusive
right to licence or sell advertisements in or through the
Customized Site, subject to AOL's then-standard advertising
polices.
4.3 Interactive Commerce. Any merchandising permitted hereunder
through the Customized Site and/or Customized Programming
shall be subject to (i) the then-current requirements of AOL's
merchant certification programme as set forth at AOL Keyword:
Merchants under the "Anchor and Gold Tenants" section, and
(ii) approval by AOL of all products, goods and services to be
offered through the Customized Site or the Customized
Programming; recognizing that AOL has provided prior approval
of ICP's diet programmes. ICP will take all reasonable steps
necessary to conform its promotion and sale of Products
through the Customized Site and Customized Programming to the
then-existing technologies identified by AOL which are
optimized for the AOL Service including, without limitation,
any "quick checkout" tool which AOL may implement to
facilitate purchase of Products by AOL Members through the
Customized Site. ICP shall pay AOL ten percent (10%) of all
Transaction Revenues resulting in a Final Sale (a Final Sales
does not include any credit card cancellations, credit card
declines, or NSF) generated from eDiets subscriptions only on
the Customized Site.
5. Customized Programming and Customized Site
5.1 Production; Performance. ICP shall optimize all Customized
Programming nd the Customized Site for distribution hereunder
according to AOL specifications and guidelines (including,
without limitation, any HTML publishing guidelines) and the
Operating Standards set forth on Exhibit E attached hereto.
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5.2 Customization. ICP shall customize all Customized Programming
and the Customized Site for AOL Members as follows:
(a) Co-Branding and Navigation. ICP shall customize
and co-brand a version of the Customized Site for
distribution over each of the AOL Properties listed
in Exhibit A-1 by displaying on each page of the
Customized Site framing, branding for and links to
the applicable AOL Property, and other navigational
and promotional spaces, each as described for each
such AOL Property on Exhibit H. ICP shall make any
changes to the customization and/or co-branding of
the Customized Site to conform to the standard
requirements of any AOL Property or otherwise
requested by AOL during the Term; provided that any
such change shall not increase the portion of the
Customized Site that is covered by such framing by
more than 10% over the portion covered by the framing
shown on Exhibit H for such AOL Property or the
standard C-frame for such AOL Property as of the
Effective Date, as applicable. At AOL's option, AOL
may elect to serve the framing, in whole or in part,
for any or all versions of the Customized Site in
which event ICP shall take all reasonable operational
steps to facilitate such serving arrangement,
including, without limitation, inserting HTML code
designated by AOL on the pages of the Customized
Site.
(b) Certain Links and Promotions. ICP shall ensure
that AOL Members accessing the Customized Programming
or linking to the Customized Site do not receive
advertisements, promotions or links (i) for any
entity reasonably construed to be in competition with
AOL or the applicable AOL Property, (ii) in a
category in which AOL or the applicable AOL Property
has an exclusive or other preferential relationship,
or (iii) otherwise in violation of the applicable AOL
Property's then-standard advertising policies. ICP
shall ensure that all Advertisements sold by ICP or
its agents comply with all applicable federal, state
and local laws and regulations. In addition, ICP
shall ensure that no promotions, advertisements or
links for any Internet browser (other than Netscape
browsers) appear within any Customized Programming
displayed to AOL Members accessing Netscape Netcenter
or within the version of the Customized Site that is
customized and co-branded for Netscape Netcenter.
(c) AOL Tools. Within the Customized Site, ICP shall
use and/or feature solely AOL's tools and technology
for the following utilities and functionality:
instant messaging, calendaring (including
"click-to-add event" functionality associated
therewith), ("AOL Tools"). If any such AOL Tool is
not made available for use on the Customized Site
within a reasonable time upon ICP's request, ICP
shall be permitted to utilize on the Customized Site
similar tools and technology provided by a third
party, provided that such tools and technology are
not branded by such third party and no links or
promotions for such third party appear on the
Customized Site and, provided, further that ICP will
convert such tools and technology over to the
corresponding AOL Tool once such AOL Tool is made
available. In addition, the Customized Site shall not
(x) provide or promote any email service or
aggregated shopping/commerce features or
functionality (e.g. an online mall), (y) use or
feature the tools or technology of any Interactive
Service other than AOL, or (z) provide any
personalized services other than a personalized
version of the Customized Site or a personalized
version of specific Content that is included on the
Customized Site in compliance with this Agreement.
(d) Domain Name. ICP shall host all pages of each
version of the Customized Site and the Customized
Programming under a domain name co-branded with the
applicable AOL Property (i.e., ediets.aol.com,
ediets.netscape.com, etc.). Upon the expiration or
earlier termination of this Agreement, unless the
Parties otherwise agree, ICP shall (i) discontinue
hosting the Customized Site under the co-branded
domain name, and (ii) for a period of six (6) months
thereafter, such co-branded domain name will be
re-directed to a jump page hosted by AOL, which jump
page will contain equally prominent navigation and
branding to ICP and AOL.
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(e) Registration. AOL Members shall not be subject to
a registration process (or any similar process) in
order to access and use the Customized Programming or
the top level of the Customized Site, but the
Customized Site may require registration or similar
processes for the specific features or functionality
expressly described on Exhibit A and other types of
features and functionality generally consistent with
those set forth on Exhibit A provided that any
registration or similar process on the Customized
Site (x) is no more burdensome than any other
registration or similar process on another ICP
Interactive Site and (y) permits AOL Members to
utilize AOL's screen name authentication
functionality and displays such functionality as
prominently as any other method of registration (and
the use of such functionality shall be subject to
AOL's standard terms for use of such functionality).
5.3 Integrity of AOL Network. The Parties will work together on
mutually acceptable links (including links back to the AOL
Network) within the Customized Site in order to create a
robust and engaging AOL member experience and the Customized
Site may include reasonable editorial links that are
contextually related to the Content described on the
Programming Plan subject to the terms of this Agreement,
including Section 5.2 (b) and the following:
(a) ICP shall take reasonable efforts to ensure that AOL
traffic is generally either kept within the Customized Site or
channeled back into the AOL Network. If AOL notifies ICP in
writing that, in AOL's reasonable judgment, links from the
Customized Site cause an excessive amount of AOL traffic to be
diverted outside of the Customized 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 the Customized Site. In the event that ICP
cannot or does not so limit diverted traffic from the
Customized Site, AOL reserves the right to terminate any links
from the AOL Network to the Customized Site.
(b) ICP shall ensure that the Customized Site does not contain
any permanent or semi-permanent links to third party Content
outside of the Customized Site, except as expressly described
in the Programming Plan. In addition, ICP shall ensure that
the Customized Site does not contain any rotational links
(including, without limitation, banner advertisements) to
aggregated Content within the same Content category or AOL
Property channel as ICP's Content, except as expressly
described in the Programming Plan.
5.4 Links within Customized Programming. The Customized
Programming shall not contain any links or pointers to any
other area on or outside of the AOL Network without AOL's
prior written consent, except as expressly described in the
Programming Plan.
5.5 Site and Content Preparation. ICP shall achieve Site and
Content Preparation for the respective Customized Site for
each AOL property as follows: AOL Service by 12/26/00,
Netscape Netcenter and CompuServe Service by 1/23/01. "Site
and Content Preparation" shall mean that ICP shall have
completed all necessary production work (including completion
of any necessary training for AOL's proprietary "Rainman"
publishing tool) for the Customized Site, all Customized
Programming and any other related areas or screens (including
Programming all Content thereon); customized and configured
the Customized Site, and all Customized Programming in
accordance with this Agreement; and completed all other
necessary work (including, without limitation, undergone all
AOL site testing set forth on Exhibit E) to prepare the
Customized Site, all Customized Programming and any other
related areas or screens to launch on the AOL Network as
contemplated hereunder. In the event ICP has not achieved Site
and Content Preparation for each respective Customized Site as
set forth above, then in addition to any other remedies
available, the Impressions Target set forth in Section 1.6
shall be reduced on a pro rata basis based on the number of
days of delay between the schedule of Site and Content
Preparation detailed above and the dates that ICP actually
achieves Site and Content Preparation divided by 365. In the
event ICP has not achieved Site and Content Preparation within
ninety (90) days after the Effective Date, then in addition to
any other remedies available, AOL shall have the right to
terminate this Agreement by giving ICP written notice thereof.
If ICP is delayed in achieving Site
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and Content Preparation solely due to a failure by AOL to
perform its obligations under this Agreement and ICP notifies
AOL in writing of such failure and the resulting delay, then
the sixty (60) day and ninety (90) day periods referenced in
this Section shall each be extended by the amount of time of
ICP's delay solely attributable to such failure by AOL.
5.6 Review. ICP shall allow appropriate AOL personnel to have
reasonable access to all Customized Programming and the
Customized Site from time to time for the purpose of reviewing
such sites to determine compliance with the provisions of this
Section 5.
6. TERM, TERMINATION, PRESS RELEASES.
6.1. Term. Unless earlier terminated as set forth herein, the
initial term of this Agreement shall commence on the Effective
Date and expire twenty-six (26) months from the Effective
Date. AOL shall have the right to extend this Agreement for
one (1) additional one (1) year period (the "First Extension
Term") unless ICP can demonstrate, on or before the date that
is sixty (60) days prior to the expiration of the initial
term, that ICP has not obtained at least [____________________
_________] new subscribers on or through the Customized Site
and/or Customized Programming by such date. In the event ICP
does not provide such documentation on or before the date that
is forty-five days prior to the expiration of the initial
term, it shall be conclusively presumed that such condition
does not exist. In the event AOL exercises AOL's right to
extend this Agreement for the First Extension Term, AOL shall
have an additional right to extend the Agreement for a second
one (1) year extension period (the "Second Extension Term"
and, collectively with the First Extension Term, the
"Extension Terms") unless ICP can demonstrate, on or before
the date that is sixty (60) days prior to the expiration of
the First Extension Term, that it has not obtained at least
[_______________________] new subscribers during the First
Extension Term on or through the Customized Site and/or
Customized Programming by such date. Each Extension Term shall
be on the same terms and conditions contained herein, except
for payment and Impressions which shall be governed as
described herein. The payments under each such Extension Term
shall be five million four hundred sixty thousand five hundred
dollars ($5,460,500.00) payable as set forth below and the
Impressions Target for each Extension Term shall be [_________
______________________________________________________________
____________________________________] Impressions, including a
Media Impressions Target of sixty million four hundred
seventy-three thousand four hundred forty-two (60,473,442)
Impressions. The payment terms during the Extension Terms, if
any, shall be as follows: two quarters in advance for each
Extension Term and the remaining two payments shall be paid
within ninety (90) days and one hundred eighty (180) days
respectively from the beginning of the Extension Term,
provided that ICP has at least six million dollars
($6,000,000.00) in capital available at such time. In the
event that ICP does not have at least six million dollars
($6,000,000.00) available at the beginning of any Extension
Term, then ICP shall pay AOL one (1) quarter in advance and
the remaining three (3) payments within ninety (90) days, one
hundred eighty (180) days and two hundred seventy (270) days
respectively from the beginning of the Extension Term. AOL
shall exercise its option to extend this Agreement by
providing ICP with written notice of such election no later
than sixty (60) days prior to the expiration of the initial
term or the then-current Extension Term, as the case may be.
Upon the expiration or earlier termination of this Agreement,
AOL may, at its discretion, continue to promote one or more
"pointers" or links from the AOL Network to an ICP Interactive
Site and continue to use ICP's trade names, trade marks and
service marks in connection therewith (collectively, a
"Continued Link"). In addition, during the Term and for the
two (2) year period after the expiration or termination
thereof, ICP shall allow AOL Members to access and use any ICP
Interactive Site on terms and conditions no less favorable
than the terms and conditions available to other users of such
ICP Interactive Site.
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; provided, however, that AOL will not
be required to provide notice to ICP in connection
8
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with ICP's failure to make any payment required under Section
1.5, and the cure period with respect to any scheduled payment
shall be fifteen (15) days from the date such payment is due.
6.3 Termination for Bankruptcy/Insolvency or Changes in Business.
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.
6.4 Press Releases. Each Party will submit to the other Party, for
its prior written approval, which will not be unreasonably
withheld or delayed, any press release or any other public
statement ("Press Release") regarding the transactions
contemplated hereunder. Notwithstanding the foregoing, either
Party 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 the
other Party and in such event, the disclosing Party will
provide at least five (5) business days prior written notice
of such disclosure. The failure to obtain the prior written
approval of the other Party shall be deemed a material breach
of this Agreement. Because it would be difficult to precisely
ascertain the extent of the injury caused to the non-breaching
Party, in the event of such material breach, the non-breaching
Party may elect either to (a) terminate this Agreement
immediately upon notice to the other Party, or (b) elect, as
liquidated damages, to modify the Impressions commitment
hereunder by fifteen percent (15%) (i.e., either an increase
in the Impressions commitment if AOL has violated this
provision or a decrease in the Impressions commitment if ICP
has violated this provision). The Parties agree that the
liquidated damages set forth in the preceding sentence are a
reasonable approximation of the injury that would be suffered
by the non-breaching Party.
6.5 Existing Agreement. The Advertising Insertion Order agreement
between ICP and AOL effective as of April 1, 2000 to March 31,
2001 is hereby terminated as of the Effective Date of this
Agreement.
7. TERMS AND CONDITIONS. The terms and conditions set forth on the
Exhibits 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. EDIETS.COM, INC.
By: By:
------------------------------- ---------------------------------
Print Name: Print Name:
----------------------- -------------------------
Title: Title:
---------------------------- ------------------------------
Date: Date:
----------------------------- -------------------------------
Tax ID/EIN#:
------------------------
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EXHIBIT A
Exhibit A-1.1: Carriage Plan broken out by AOL Property
<TABLE>
<CAPTION>
==================================================================================================================
AOL Property Channel / Subchannel Promotional Placement Placement Type
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
AOL Women's Wellness/ Main Permanent Anchor Tenant
75%* Women's Wellness/ Main Rotating Text Promotion
Women's Wellness/ Main Permanent Drop Down List Box
Listing
Women's Wellness/ Diet Permanent Anchor Tenant
Women's Wellness/ Diet Rotating Text Link
Women's Wellness/ Diet Permanent Drop Down List Box
Listing
Women's Wellness/Fitness Rotating Text Link
Women's Wellness/Fitness Permanent Drop Down List Box
Listing
Women's Wellness/Self-Discovery Rotating Text Link
Women's Wellness/Self-Discovery Permanent Drop Down List Box
Listing
Women's Feature/Get Fit Permanent Text Link
Women's Feature/My Look Permanent Text Link
Women's Feature/Women in their 20s Permanent Text Link
Women's Feature: Women in their 30s Permanent Text Link
Women's Feature: Women in their 40s Permanent Text Link
Women's Wellness Newsletter Newsletter Feature Module
CompuServe Health & Fitness Nutrition / Main Permanent text link
8%* Health & Fitness Nutrition / Main Permanent text link
Health & Fitness Diet Central / Main Permanent content link
Health & Fitness Diet Central / Main Permanent text link
Health & Fitness Fitness / Main Permanent teaser link
Women's Mind & Body / Main Permanent text link
Netscape Lifestyles Women Right Rail Text
17%* Lifestyles Food & Drink Right Rail Text
Lifestyles Main Index Right Rail Text
Health Main Index Right Rail Content Block
Health Women's Health Center Column Feature
Health Diet & Nutrition Center Column Feature
Health Men's Health Center Column Feature
Health Exercise & Fitness Center Column Feature
==================================================================================================================
</TABLE>
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Exhibit A-1.2: Media Plan
<TABLE>
<CAPTION>
========================================================================================================
FLIGHT TOTALS
--------------------------------------------------------------------------------------------------------
AIM Copy Size START END IMPS
<S> <C> <C> <C> <C>
AIM Buddy List Banners 120x60 12/26/00 12/31/02 15,327,880
AIM Pager Alerts TOOL 12/26/00 12/31/02
AIM Welcome Screen Banners 234x60 12/26/00 12/31/02 12,262,745
AIM Welcome Screen Promo Placement 12/26/00 12/31/02 36,787,500
Sub Total 64,378,125
AOL Service
Dieting and Weight Loss 234x60 12/26/00 12/31/02 1,054,905
Dieting and Weight Loss TEXT 1/1/02 3/31/02 1,870,958
Dieting and Weight Loss TEXT 12/26/00 3/31/01 1,736,600
Fitness & Sports Medicine 234x60 12/26/00 12/31/02 1,450,585
Health Channel> Resolutions Special 88x31 12/26/00 4/1/01 374,400
Health Channel> Resolutions Special 234x60 12/26/00 4/1/01 93,600
Hometown AOL - Dieting 120x30 12/26/00 12/31/02 22,820
Hometown AOL - Dieting - Member Pages 120x30 12/26/00 12/31/02 41,225
Premium Diet and Nutrition Health Package 234x60 12/31/02 8,479,198
{5100009869} 11/25/00
Premium Eating Well Health Package {5100010115} 234x60 11/25/00 12/31/02 148,608
Premium Women's Health Package {5100010280} 234x60 11/25/00 12/31/02 585,273
Web Center - Health - Diet & Nutrition 141x60 12/26/00 12/31/02 231,890
Wellness Center - Main - Diet & Fitness 88x31/120x60 12/26/00 12/31/02 1,319,185
Sub Total 17,409,247
Calendar
ROS-Click to Add Functionality 468x60 12/26/00 1/31/01 270,000
ROS-Click to Add Functionality 468x60 1/1/02 1/31/02 258,750
Sub Total 528,750
Netscape
Health - Main Screen 194x15 12/26/00 12/31/02 1,345,315
Health News 468x60 12/26/00 12/31/02 336,420
Netscape - Health - Diet and Nutrition 468x60 3/15/01 12/31/02 374,741
Netscape - Health - Diet and Nutrition 468x60 11/25/00 12/25/00 9,541
Netscape - Health - Diet and Nutrition 141x60 12/26/00 12/31/02 912,911
Netscape - Health - Exercise and Fitness 194x15 11/25/00 12/31/02 914,391
Sub Total 3,893,319
Oxygen Media
Oxygen - AOL - Oxygen.com - Diet 468x60 12/26/00 12/31/02 68,095
Oxygen - AOL - Thriveonline - Fitness 234x60 12/26/00 12/31/02 791,360
Oxygen - AOL - Thriveonline - Run Of Site 234x60 12/26/00 12/31/02 156,065
Oxygen - AOL.com - Thriveonline - General 468x60 12/26/00 12/31/02 3,481,995
Oxygen - AOL.com - Thriveonline - Home 468x60 12/26/00 12/31/02 1,266,180
========================================================================================================
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C>
Oxygen - Crossbrand - Thriveonline - Special 120x90 12/26/00 12/31/02 3,956,810
Promotions - Nutrition & Diet
Oxygen - CSI - Thriveonline - Weight 468x60 12/26/00 12/31/02 521,565
Oxygen - Public - Oxygen.com - Diet 468x60 12/26/00 12/31/02 637,875
Oxygen - Public - Partner Button - Diet 120x60 12/26/00 12/31/01 4,861,645
Oxygen - Public - Thriveonline - Nutrition 120x60 12/26/00 12/31/02 6,330,900
Oxygen - Public - Thriveonline - Nutrition 468x60 12/26/00 12/31/02 1,582,725
Oxygen - Public - Thriveonline - Weight 468x60 11/25/00 12/31/02 873,653
Oxygen - Thriveonline - Newsletter 468x60 12/26/00 12/31/02 3,165,450
Run of Oxygen - Crossbrand - Special Promotions - 120x90 12/26/00 12/31/02 5,460,400
Self Discovery ( Tenant 2)
Run of Oxygen - Crossbrand - Special Promotions - 120x90 12/26/00 12/31/02 1,582,725
Women's Health (Tenant 2)
Sub Total 34,737,443
Total 120,946,884
--------------------------------------------------------------------------------------------------------
</TABLE>
All necessary artwork for banner advertisements ("Banner Ads") must be
provided by ICP at least three (3) business days prior to the start
date for such Banner Ads. AOL may alter or shorten the flight dates for
the Banner Ads if advertising materials are not provided in a timely
manner.
In the event the Media Impressions Target, or the corresponding
impressions for any specific Banner Ad, are reached prior to the
expiration of the Term, AOL may, at its option, discontinue display at
such earlier time. AOL reserves the right to alter ICP flight dates to
accommodate trafficking needs or other operational needs. In such
cases, AOL will make available to ICP reasonably equivalent flight(s).
The Impressions line items in the Media Plan are good faith estimates
and are not firm commitments for each respective placement.
Subject to ICP's reasonable approval, AOL shall have the right to
fulfill its promotional commitments with respect to the Banner Ads by
providing ICP with comparable placements of the Banner Ads in
alternative areas of the AOL Network.
Rotational Placements set forth above are contingent upon ICP not
requiring AOL Users to register or pay to access the Content linked
from such Rotational Placements.
* These percentages are (a) AOL internal targets provided herein for
informational purposes only, and (b) based upon the [___________]
Impressions. AOL will, however, use commercially reasonable efforts to
deliver the Impressions in reasonable relation to such percentages
based upon any [___________] Impressions.
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Exhibit A-2: Programming Plan:
Programming Overview
ICP shall provide editorial content (advice, articles, tools, and
features) and other content in the Customized Sites for AOL, CompuServe
and Netscape. ICP shall provide content for the following departments:
Wellness, Diet, Fitness, Self-Discovery, including content for at least
3 editorial features/month. ICP must provide/edit content to adhere to
Advice Database formatting standards. No registration shall be required
to access ICP content on the customized sites. ICP shall deliver a
minimum of 150 word text block ten (10) days in advance of the Women's
Channel Wellness Newsletter distribution date. The 150 word text block
submitted by ICP shall be focused on Content focused and not commerce
focused. ICP's 150 word text block is subject to approval by AOL.
Specific Content Requirements
ICP shall create a Customized Site to accommodate AOL text and graphic
promotions in accordance with the following:
-----------------------------------------------------------------------
Update Schedule Content on Customized Site
-----------------------------------------------------------------------
Meal Plan Ask the Dietician
Daily Tip of the Day
-----------------------------------------------------------------------
Expert Advice Column Ask the Psychologist
Weekly Health & Diet Tips
-----------------------------------------------------------------------
Healthy Bytes Special Guest Expert
Column
Once a month Newsletter paragraph
Dining Out Help Best/Worst Foods
Fitness Quizzes Eat This
3 editorial features/month
-----------------------------------------------------------------------
CompuServe
1. All Newsletters and emailed information to registrants coming
from CompuServe to contain only links back to co-branded site
pages.
2. Partner to provide the content via automated scripted feed in
a consistent HTML, XML or RDF Format at a URL to be designated
by partner.
o Daily Weight loss tip of the day to be displayed on
Diet Central
o Weekly Weight loss headline, article teaser and link,
to be displayed on Diet Central and linking to full
article on co-branded site.
o Weekly Ask the Nutritionist Question, and link to the
answer, to be displayed on Nutrition.
o Weekly Best and Worst Foods headline and link, to be
displayed on Diet Central
o Weekly "Eat This" Headline, teaser and link, to be
displayed on Nutrition
o Bi-weekly graphic, headline, short teaser and link to
featured animated exercise, to be displayed on Fitness
The customized sites shall be found at the following URLs:
AOL Customized Site: ediets.aol.com
CompuServe Customized Site: ediets.compuserve.com
Netscape: ediets.netscape.com
13 CONFIDENTIAL
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EXHIBIT B -- DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
Advertisements. Promotions, placements, advertisements, links, pointers and
similar services or rights.
Affiliate. Any agent, distributor or franchisee of AOL, or an entity that,
directly or indirectly, controls, is controlled by, or is under common control
with AOL, including any entity in which AOL holds, directly or indirectly, at
least a nineteen percent (19%) equity interest.
AOL Represented Advertising. Advertising inventory within any AOL Property(ies)
or third party Internet site(s) on which AOL sells advertising.
AOL Service. The standard narrow-band U.S. version of the America Online(R)
brand service, specifically excluding (a) AOL.comSM and any other AOL
Interactive Site, (b) the international versions of an America Online service
(e.g., AOL Japan) and/or any non-English language based feature or area of the
America Online brand service, (c) the CompuServe(R) brand service and any other
CompuServe products or services, (d) Netscape Netcenter(TM) and any other
Netscape(R) products or services, (e) "ICQSM," "AOL Search," "You've Got
Pictures," "Shop @," "My News," "AOL PlusSM," "AOL Instant MessengerSM,"
"Digital CitySM," "AOL NetMailSM," "Real FansSM", "Love@AOLSM", "Entertainment
AsylumSM," "AOL HometownSM" or any similar independent product, service or
property which may be offered by, through or with the U.S. version of the
America Online(R) brand service, (f) any Programming or content area offered by
or through the U.S. version of the America Online(R) 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), (g) 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(R) brand service, (h) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective Date
and (i) any other version of an America Online service which is materially
different from the standard narrow-band U.S. version of the America Online brand
service, by virtue of its branding, distribution, functionality, Content or
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 Property. Any product, service or property owned, operated, marketed,
distributed, or authorized to be distributed by or through AOL or its
Affiliates, including, without limitation, the AOL Service, Netscape Netcenter,
and CompuServe,.
AOL Look and Feel. The elements of graphics, design, organization, presentation,
layout, user interface, navigation, trade dress and stylistic convention
(including the digital implementations thereof) within the AOL Network and the
total appearance and impression substantially formed by the combination,
coordination and interaction of these elements.
AOL Member(s). Any user of the AOL Network, including authorized users
(including any sub-accounts under an authorized master account) of the AOL
Service and/or the CompuServe Service.
AOL Network. (i) The AOL Service, the CompuServe Service, and Netscape Netcenter
and (ii) any other product, service or property owned, operated, distributed or
authorized to be distributed by or through AOL or its Affiliates worldwide (and
including those products, services and properties that are excluded from the
definitions of the AOL Service, AOL.com or any other AOL Property). It is
understood and agreed that the rights of ICP relate solely to particular AOL
Properties as expressly set forth in this Agreement and not generally to the AOL
Network.
AOL Network Screens. The AOL Service "Welcome" screen, the "AOL Today" screen or
similar "Network" screens on the AOL Network.
AOL Purchaser. (i) Any person or entity who enters the Customized Site or the
Customized Programming from the AOL Network including, without limitation, from
any third party area therein (to the extent entry from such third party area is
traceable through both Parties' commercially reasonable efforts), and generates
Transaction Revenues (regardless of whether such person or entity provides an
e-mail address during registration or entrance to the Customized Site which
includes a domain other than an "AOL.com" domain); and (ii) any other person or
entity who, when purchasing a product, good or service through an ICP
Interactive Site, provides an AOL.com domain name or a CompuServe.com domain
name as part of such person or entity's e-mail address and provided that any
person or entity who has previously satisfied the definition of AOL Purchaser
will remain an AOL Purchaser, and any subsequent purchases by such person or
entity (e.g., as a result of e-mail solicitations or any off-line means for
receiving orders requiring purchasers to reference a specific promotional
identifier or tracking code) will also give rise to Transaction Revenues
hereunder (and will not be conditioned on the person or entity's satisfaction of
clauses (i) or (ii) above).]
Change of Control. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
a party or (b) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
CompuServe Service. The standard HTML version of the narrow-band U.S. version of
the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe) and/or any non-English language
based feature or area of such service, (b) any web-based service including
"compuserve.com", "cserve.com" and "cs.com", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe affiliates or any
similar "sub-service," (d) any Programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g.,
third-party Content areas), (e) any yellow pages, white pages, classifieds or
other search, directory or review services or Content (f) any co-branded or
private label branded version of the U.S. version of the CompuServe brand
service, (g) any version of the U.S. version of the CompuServe brand service
which offers Content, distribution, services or functionality materially
different from the Content, distribution, services or functionality associated
with the standard, narrow-band U.S. version of the CompuServe brand service,
including, without limitation, any version of such service distributed through
any platform or device other than a desktop personal computer, (h) any property,
feature, product or service which CompuServe or its affiliates may acquire
subsequent to the Effective Date, (i) the America Online brand service and any
independent product or service which may be offered by, through or with the U.S.
version of the America Online brand service and (j) the HMI versions of the
CompuServe brand service.
Confidential Information. Any information relating to or disclosed in the course
of this Agreement, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not limited
to, 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, or (d)
lawfully obtained from any third party.
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, URLs, keywords and other navigational
elements, links, pointers, technology and software.
Customized Programming. Any (a) area within the AOL Network or outside the AOL
Network but exclusively available to AOL Members, which area is developed,
programmememed, and/or managed by ICP, in whole or in part, pursuant to this
Agreement and all Content thereon (including, without limitation, message
boards, chat and other AOL Member-supplied content areas contained therein and
including any sites or areas linked thereto) including, without limitation, any
co-branded site or page, but excluding the Customized Site and (b) Content
provided to AOL by ICP pursuant to this Agreement for distribution on or through
the AOL Network other than on the Customized Site, including any Content
appearing in the Placements.
14 CONFIDENTIAL
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Customized Site. Collectively, each version of the Generally Available Site that
is customized for distribution through the AOL Network in accordance with this
Agreement.
Generally Available Site (s). The Internet site and Content, currently located
at URL:http://www.ediets.com and all related URLs, which are managed, maintained
or owned by ICP or its agents or to which ICP licences information, content or
other materials.
Keyword(TM) Search Terms. (a) The Keyword online search terms made available on
the AOL Service, combining AOL's Keyword online search modifier with a term or
phrase specifically related to ICP (and determined in accordance with the terms
of this Agreement) and (b) the "Go Word" online search terms made available on
the CompuServe Service, combining CompuServe's Go Word online search modifier
with a term or phrase specifically related to ICP (and determined in accordance
with the terms of this Agreement).
ICP Interactive Site. Any interactive site or area (other than Customized
Programming), including any mirrored site or area, which is managed, maintained
or owned by ICP or its agents or to which ICP provides and/or licences
information, content or other materials, including, by way of example and
without limitation, (i) an ICP site on the World Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product such as
the Pointcast Network, an interactive environment such as Microsoft's Active
Desktop, an interactive television service such as WebTV, a wireless handheld
device, or any other interactive medium or platform.
ICP Presence. Any (a) ICP trademark or logo, (b) headline or picture from ICP
Content, (c) teaser, icon, or link to the Customized Site or Customized
Programming and/or (d) other Content which originates from, describes or
promotes ICP or ICP's Content.
Impression. User exposure to a page, screen, panel or deck containing an ICP
Presence, as such exposure may be reasonably determined and measured by AOL in
accordance with its standard methodologies and protocols. Each ICP Presence on
any such page or screen will count as a separate Impression.
Interactive Service. An entity offering one or more of the following: (i) online
or Internet connectivity services (e.g., an Internet service provider); (ii) an
interactive site or service featuring a broad selection of aggregated third
party interactive content (or navigation thereto) (e.g., an online service or
search and directory service) and/or marketing a broad selection of products
and/or services across multiple interactive commerce categories; (iii) a
persistent desktop client; or (iv) communications software capable of serving as
the principal means through which a user creates, sends or receives electronic
mail or real time or "instant" online messages (whether by telephone, computer
or other means).
Licenced Content. All Content offered through the Customized Site pursuant to
this Agreement or otherwise provided by or on behalf of ICP or its agents in
connection herewith (e.g., offline promotional content or online Content for
distribution through the AOL Network), including without limitation all
Customized Programming.
Netscape Netcenter. Netscape Communications Corporation's primary Internet-based
Interactive Site marketed under the "Netscape NetcenterSM" brand, specifically
excluding (a) the AOL Service and the CompuServe Service, (b) AOL.com and
CompuServe.com, (c) any international versions of such site and/or any
non-English language based feature or area of such site, (d) "ICQ," "AOLSearch,"
"You've Got Pictures," "Shop @," "My News," "AOL PlusSM," "AOL Instant
Messenger," "AOL NetMail," "AOL Hometown," "My News," "Digital City," or any
similar independent product or service offered by or through such site or any
other AOL Interactive Site, (e) any Programming or Content area offered by or
through such site over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (f) any Programming or Content area offered by or
through the U.S. version of the America Online brand service which was operated,
maintained or controlled by the former AOL Studios division (e.g., Electra), (g)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through such site or any other AOL Interactive
Site, (h) any property, feature, product or service which AOL or its affiliates
may acquire subsequent to the Effective Date and (i) any other version of an AOL
or Netscape Communications Corporation Interactive Site which is materially
different from Netscape Communications Corporation's primary Internet-based
Interactive Site marketed under the "Netscape Netcenter(TM)" brand, by virtue of
its branding, distribution, functionality, Content or services, including,
without limitation, any co-branded versions and any version distributed through
any broadband distribution platform or through any platform or device other than
a desktop personal computer (e.g. Custom NetCenters built specifically for third
parties).
Product. Any product, good or service which ICP (or others acting on its behalf
or as distributors) offers, sells, provides, distributes or licences to AOL
Members directly or indirectly through (i) the Customized Site (including
through any Interactive Site linked thereto) or Customized Programming, (ii) any
other electronic means directed at AOL Members (e.g., e-mail offers), or (iii)
an "offline" means (e.g., toll-free number) for receiving orders related to
specific offers within the Customized Site or Customized Programming requiring
purchasers to reference a specific promotional identifier or tracking code,
including, without limitation, products sold through surcharged downloads (to
the extent expressly permitted hereunder).
Term. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of this Agreement.
Transaction Revenues. Aggregate amounts paid by AOL Purchasers in connection
with the sale, licensing, distribution or provision of any Products, including,
in each case, handling, shipping, service charges, and excluding, in each case,
(a) amounts collected for sales or use taxes or duties and (b) credits and
chargebacks for returned or canceled goods or services, but not excluding cost
of goods sold or any similar cost.
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EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
Content. ICP represents, warrants and covenants that all Content contained
within the Customized Site and Customized Programming and all Licenced Content
(i) does and will conform to the Terms of Service for the applicable AOL
Property, the terms of this Agreement and any other standard, written policy of
AOL and any applicable AOL Property (including without limitation AOL's kids
policies to the extent applicable), (ii) does not and will not infringe on or
violate any copyright, trademark, U.S. patent, rights of publicity or privacy,
moral rights or any other third party right, including without limitation, any
music performance or other music related rights, and (iii) does not and will not
contain any Content which violates any applicable law or regulation ((i), (ii)
and (iii) collectively, the "Rules"). In the event that AOL notifies ICP in
writing that any such Content, as reasonably determined by AOL, does not comply
or adhere to the Rules, or AOL reasonably believes that further display of such
Content will expose AOL to liability or other adverse consequences, then ICP
shall use its best efforts to block access by AOL Members to such Content. In
the event that ICP cannot, through its best efforts, block access by AOL Members
to such Content 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 Content in question using technology available to AOL or (ii) in
the event access cannot be restricted, direct ICP to remove any such Content.
ICP will cooperate with AOL's reasonable requests to the extent AOL elects to
implement any such access restrictions.
AOL Network Distribution. ICP shall not authorize or permit any third party to
distribute any Content of ICP through the AOL Network absent AOL's prior written
approval. The distribution, placements and/or promotions described in this
Agreement or otherwise provided to ICP by AOL shall be used by ICP solely for
its own benefit, will promote solely the Licenced Content within the Customized
Site or Customized Programming expressly described on Exhibit A and will not be
resold, traded, exchanged, bartered, brokered or otherwise offered or
transferred to any third party or contain any branding other than ICP's
branding. Further, the Content of all such distribution, placements and
promotions shall be subject to AOL's policies relating to advertising and
promotion, and to AOL's exclusivity commitments and other contractual
preferences to third parties.
Changes to AOL Properties. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of the
AOL Network at any time, including without limitation, by adding or deleting
channels, subchannels and/or screens and/or by outsourcing to a third party the
Programming responsibility for any channel, subchannel, screen or portion
thereof. If such redesign or modification substantially modifies the nature of
the distribution provided under this Agreement in a material adverse fashion, or
if AOL is otherwise unable to deliver any particular Placement, AOL will work
with ICP in good faith to provide ICP, as its sole remedy, with comparable
distribution.
Kids and Teens Policies. At all times, ICP shall comply with the applicable AOL
Property's then-standard policies regarding "child designated content." As used
herein, "child designated content" means Content that is designed for: (i) Kids
(children 12 and under), (ii) Young Teens (children ages 13-15), (iii) Mature
Teens (children ages 16-17), and (iv) any combination of Kids, Young Teens, and
Mature Teens. ICP shall ensure that all child designated content (including all
advertising in child designated content areas) distributed on or through the ICP
complies with any relevant written AOL policy (Kids, Young Teens, Mature Teens)
that is provided in writing to ICP, including any obligations that such child
designated content be marked or tagged so that it may operate properly in
connection with viewing restriction functionality provided to AOL Members.
Without limiting the generality of the foregoing or any other provision of this
Agreement, ICP shall notify AOL in writing whenever it intends to distribute
child designated content for these age groups on or through the ICP to ensure
proper age restriction categorization.
Contests. ICP shall ensure that any contest, sweepstakes or similar promotion
conducted or promoted through the Customized Site and/or Customized Programming
(a "Contest") complies with all applicable 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 the Contest complies with all applicable federal, state and local laws and
regulations.
Disclaimers. ICP agrees to include within the Customized Site and Customized
Programming a disclaimer (the specific form and substance to be mutually agreed
upon by the Parties) indicating that all Content (including any products and
services) is provided solely by ICP and not AOL, and any transactions are solely
between ICP and AOL Members using or purchasing such Content and AOL is not
responsible for any loss, expense or damage arising out of the Licenced Content
or services provided through the Customized Site or Customized Programming
(e.g., "In no event shall AOL nor any of its agents, employees, representatives
or affiliates be in any respect legally liable to you or any third party in
connection with any information or services contained herein and AOL makes no
warranty or guaranty as to the accuracy, completeness, correctness, timeliness,
or usefulness of any of the information contained herein"). ICP shall not in any
manner state or imply that AOL recommends or endorses ICP or its Content.
Expert/Specialist Content. If any of the Licenced Content professes to provide
expert, professional or other specialty advice or Content (such as, without
limitation, medical or psychological, religious, financial, etc.), ICP shall
ensure that all such Licenced Content is prepared or reviewed by licenced,
insured and qualified practitioners/professionals in such field with expertise
on the particular topic and such Licenced Content complies with applicable
standards of the applicable profession and all applicable laws and regulations.
Upon request by AOL from time to time, ICP shall provide AOL with evidence
reasonably satisfactory to AOL of proper licensure and compliance with the
foregoing sentence.
Insurance. At all times during the Term, ICP shall maintain, with a carrier
having an AM Best financial rating of A- or better and in the size category of
VII or higher, an insurance policy or policies adequate in amount to insure ICP
against all liability associated with the Customized Site and the Licenced
Content, including at least $3,000,000 combined single limit coverage for
copyright and trademark infringement and defamation and negligent disclosure of
information. ICP shall include AOL as an additional insured party on such policy
or policies. ICP shall provide AOL with a copy of such policy or policies or a
certificate of insurance evidencing the same within thirty (30) days after the
Effective Date, failing which, in addition to all other available remedies, AOL
shall be entitled to delay the launch of the Licenced Content on the AOL Network
(and reduce AOL's promotional obligations proportionately). ICP shall provide
AOL with sixty (60) days advance notice of any cancellation, non-renewal or
material change in coverage associated with such policy or policies, and AOL
shall have the right to restrict access from the AOL Network to any or all of
the Licenced Content (and reduce AOL's promotional obligations proportionately)
until such insurance coverage is reinstated. Insurance required hereunder shall
in no way reduce or limit ICP's actual obligations to indemnify AOL under this
Agreement.
Rewards Programmemes. ICP shall not offer, provide, implement or otherwise make
available on the Customized Site or Customized Programming any promotional
programmemes or plans that are intended to provide customers with rewards or
benefits in exchange for, or on account of, their past or continued loyalty to,
or patronage or purchase of, the products or services of ICP or any third party
(e.g., a promotional programmeme similar to a "frequent flier" programmeme),
unless such promotional programmeme or plan is provided exclusively through
AOL's "AOL Rewards" programmeme, accessible on the AOL Service at Keyword: "AOL
Rewards."
Navigation. In cases where an AOL Member performs a search for ICP through any
search or navigational tool or mechanism that is accessible or available through
the AOL Network (e.g., Placements, promotions, Keyword Search Terms, navigation
bars or any other promotions or navigational tools), AOL shall have the right to
direct such AOL Member to the Customized Site, or any other ICP Interactive Site
determined by AOL in its reasonable discretion. ICP shall ensure that navigation
back to the AOL Network from the Customized Site (and from any other ICP
Interactive Site linked to from the AOL Network), whether through a particular
pointer or link, the "back" button on an Internet browser, the closing of an
active window, or any other return mechanism, shall not be interrupted by ICP
through the use of any intermediate screen or other device not specifically
requested by the user, including without limitation through the use of any html
pop-up window or any other similar device.
Client Alterations. ICP shall not include on the Customized Site or Customized
Programming any downloadable software or other mechanism that allows users to
alter the navigation, user interface, look and feel, or any other element of any
AOL or AOL Affiliate client software or software that is bundled therewith
(including, without limitation, the Internet browsers).
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 Customized Site or Customized Programming (the "AOL Frames"). AOL may,
at its discretion, incorporate navigational icons, links and pointers or other
Content into such AOL Frames.
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Operations. AOL shall be entitled to require reasonable changes to the
Customized Site and Customized Programming, and/or cease or decrease the
Placements, to the extent such site will, in AOL's good faith judgment,
adversely affect operations of the AOL Network.
Classifieds, Auctions and Clubs. ICP shall not implement or promote any
classifieds listing, yellow/white pages or similar features through Customized
Programming or Customized Site, other than listings that are specifically
related to the primary Content on the Customized Site in accordance with this
Agreement, without 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. ICP
shall not conduct any merchandising through the Customized Site or Customized
Programming through auctions, clubs or any method other than a direct sales
format without AOL's prior written consent.
Message Boards; Chat Rooms and Comparable Vehicles. Any Content submitted by ICP
or its agents within message boards, chat rooms or any comparable vehicles will
be subject to the licence grant relating to submissions to "public areas" set
forth in the AOL Terms of Service. ICP acknowledges that it has no rights or
interest in AOL Member submissions to message boards, chat rooms or any other
vehicles through which AOL Members may make submissions within the AOL Network.
ICP will refrain from editing, deleting or altering, without AOL's prior
approval, any opinion expressed or submission made by an AOL Member within
Customized Programming except in cases where ICP has a good faith belief that
the Content in question violates an applicable law, regulation, third party
right or the applicable AOL Property's Terms of Service.
Duty to Inform. ICP shall promptly inform AOL of any information related to the
Customized Site, Customized Programming or the Licenced 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 and Taxes. ICP shall respond
promptly and professionally to questions, comments, complaints and other
reasonable requests regarding the Customized Site, Customized Programming or the
Licenced Content by AOL Members or on request by AOL, and shall cooperate and
assist AOL in promptly answering the same. ICP shall have sole responsibility
for customer service (including, without limitation, order processing, billing,
shipping, etc.) and AOL shall have no responsibility with respect thereto. ICP
shall comply with all applicable requirements of any federal, state or local
consumer protection or disclosure law. ICP will collect and pay and indemnify
and hold AOL harmless from, any sales, use, excise, import or export, value
added or similar tax or duty arising from or related to the Licenced Content or
any merchandising on the Customized Site, including any penalties and interest,
as well as any costs associated with the collection or withholding thereof,
including attorneys fees.
Statements through AOL Network. ICP shall not make, publish, or otherwise
communicate through the AOL Network any deleterious remarks concerning AOL or
its 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.
Production Work. Unless expressly provided for elsewhere in this Agreement, AOL
shall have no obligation to provide any creative, design, technical or
production services to ICP ("Services"). Delivery by AOL of any such Services
shall be subject to (i) AOL's availability to perform the requested work, (ii)
execution by both parties of a separate work order specifically outlining the
Services to be provided and the fees to be paid by ICP for such Services and
(iii) payment in advance by ICP of such fees. To the extent ICP elects to retain
a third party provider to perform any such production work, work produced by
such third party provider must generally conform to AOL's production standards
available at Keyword "Styleguide." The specific production resources which AOL
allocates to any production work to be performed on behalf of ICP shall be as
determined by AOL in its sole discretion. With respect to any routine
production, maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning and
integration of the Placements, Customized Programming and the Customized Site
("Routine Services"), ICP will pay the then-standard fees charged by AOL for
such Routine Services.
Production Tools. AOL shall determine in its sole discretion, which of its
proprietary publishing tools (each a "Tool") shall be made available to ICP in
order to develop and implement the Licenced Content during the Term. ICP shall
be granted a nonexclusive licence during the Term to use any such Tool, which
licence 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 licence at any time, and (iii) ICP's express
recognition that AOL provides all Tools on an "as is" basis, without warranties
of any kind.
Training and Support. AOL shall make available to ICP standard AOL training and
support programmemes necessary to produce any AOL areas hereunder. ICP can
select its training and support programmeme from the options then offered by
AOL. ICP shall be responsible to pay the fees associated with its chosen
training and support package. In addition, ICP will pay travel and lodging costs
associated with its participation in any AOL training programmemes (including
AOL's travel and lodging costs when training is conducted at ICP's offices).
Launch Date. In the event that any terms contained herein relate to or depend on
the launch date of the Customized Site or other property contemplated by this
Agreement, which launch date is later than the Effective 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.
Keywords; Search Terms. Any Keyword Search Terms to be directed to the
Customized Site shall be (i) subject to availability for use by ICP and (ii)
limited to the combination of the Keyword(TM) or "go word" 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 ICP 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. To the extent ICP is
purchasing an Advertisement related to a "search" term, ICP represents and
warrants that ICP has the legal rights necessary to utilize such search term in
connection with the Advertisement. This Section shall survive the completion,
expiration, termination or cancellation of this Agreement.
Accounts. To the extent AOL has granted ICP any accounts on the AOL Service, ICP
will be responsible for the actions taken under or through its accounts, which
actions are subject to AOL's applicable Terms of Service and for any surcharges,
including, without limitation, all premium charges, transaction charges, and any
applicable communication surcharges incurred by any account issued to ICP, but
ICP will not be liable for charges incurred by any account relating to AOL's
standard monthly usage fees and standard hourly charges, which charges AOL will
bear. Upon the termination of this Agreement, all accounts, related screen names
and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any such account.
II. TRADEMARKS
Trademark Licence. In designing and implementing any marketing, advertising, or
other promotional materials (expressly excluding Press Releases) related to this
Agreement and/or referencing the other Party and/or its trade names, trademarks
and service marks (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(R)" brand
service, "AOL(TM)" service/software and AOL's triangle logo and, in connection
therewith, ICP shall comply with the AOL styleguide available at keyword: "style
guide"; and AOL and its Affiliates shall be entitled to use the trade names,
trademarks and service marks of ICP (collectively, together with the AOL marks
listed above, the "Marks"); provided that each Party: (i) does not create a
unitary composite mark involving a Mark 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.
This Section shall survive the completion, expiration, termination or
cancellation of this Agreement.
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 licences 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.
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Promotional Materials. Each Party will submit to the other Party, for its prior
written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials; provided, however, that after 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 in Promotional Materials to the existence of a business relationship
between AOL and ICP, including, without limitation, the availability of the
Licenced Content through the AOL Network, or use of screen shots relating to the
distribution under this Agreement (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 distribution of the Licenced Content through the AOL Network 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 licences 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/ NONSOLICITATION
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 disclosure of Confidential Information of the other
Party, other than to its employees, or to its other agents who must have access
to such Confidential Information for such Party to perform its 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 or as reasonably advised by legal counsel. 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.
During the Term and for a period of twelve (12) months thereafter, ICP shall not
hire or attempt to hire any Restricted Employee and shall not, directly or
indirectly, solicit, induce, or in any manner attempt to influence any
Restricted Employee to terminate his or her employment with AOL, or to modify
such relationship in a manner that is adverse to the interests of AOL; provided,
however, that ICP may employ any person who (a) initially contacts ICP without
solicitation, directly or indirectly, by ICP or (b) responds to any general
media solicitation of employment or engagement by ICP or to any solicitation or
inquiry from a recruiter retained by ICP provided that such person is not
specifically identified or targeted by ICP for such solicitation or inquiry.
"Restricted Employee" shall mean any person employed by AOL who is or was
involved in the negotiation, implementation, or administration of this Agreement
and/or any activity contemplated hereunder. Notwithstanding anything to the
contrary in this Agreement, ICP agrees that in the event of a breach or
threatened breach of any covenant contained in this paragraph, AOL shall have
the right and remedy to have such covenant specifically enforced by any court
having competent jurisdiction, it being acknowledged and agreed by ICP that any
material breach of any covenant in this paragraph will cause irreparable injury
to AOL and that money damages will not provide an adequate remedy.
V. RELATIONSHIP WITH AOL MEMBERS
Solicitation of Subscribers. (a) During the term of this Agreement and for a two
year period thereafter, ICP 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, ICP 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 (i) engaged in a transaction
with ICP or (ii) provided information to ICP 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 ICP 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 ICP 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).
(b) ICP shall ensure that its collection, use and disclosure of information
obtained from AOL Members under this Agreement ("Member Information") complies
with (i) all applicable laws and regulations and (ii) AOL's standard privacy
policies, available on the AOL Service at the keyword term "Privacy" (or, in the
case of the Customized Site, ICP's standard privacy policies so long as such
policies are prominently published on the site and provide adequate notice,
disclosure and choice to users regarding ICP's collection, use and disclosure of
user information). ICP 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.
Email Newsletters. Any email newsletters sent to AOL Members by ICP 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.
AOL Member Communications. To the extent ICP is otherwise permitted to send
communications to AOL Members (in accordance with the other requirements
contained herein): in any such communications to AOL Members on or off the
Customized Site (including, without limitation, e-mail solicitations), ICP will
limit the subject matter of such communications to those categories of products,
services and/or content that are specifically contemplated by this Agreement and
will not encourage AOL Members to take any action inconsistent with the scope
and purpose of this Agreement, including without limitation, the following
actions: (i) using an Interactive Site other than the Customized Site for the
purchase of Products, (ii) using Content other than the Licenced Content; (iii)
bookmarking of Interactive Sites; or (iv) changing the default home page on the
AOL browser. Additionally, with respect to such AOL Member communications, in
the event that ICP encourages an AOL Member to purchase products through such
communications, ICP shall ensure that (a) the AOL Network is expressly promoted
as the primary means through which the AOL Member can access the Customized Site
(including without limitation by stating the applicable Keyword Search Term and
including direct links to specific offers within the Customized Site) and (b)
any link to the Customized Site will link to a page which indicates to the AOL
Member that such user is in a site which is affiliated with the AOL Network.
VI. TREATMENT OF CLAIMS
Liability. 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 BREACH OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE AOL
NETWORK OR ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY,
"DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE TO THE OTHER
PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE
SUBJECT TO INDEMNIFICATION BELOW.
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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
IN THE YEAR IN WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED; PROVIDED
THAT EACH PARTY SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT
OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE PROVISIONS OF THIS AGREEMENT.
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 AOL TOOLS, 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 AOL NETWORK OR THE CUSTOMIZED SITE.
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, ICP will defend, indemnify, save and hold harmless AOL and AOL's
officers, directors, agents, affiliates, distributors, franchisees and employees
from any and all Liabilities arising out of or in any way related to the
Licenced Content.
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.
VII. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable efforts
to promptly resolve any claim, dispute, 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
Programmemes. 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
19
<PAGE>
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 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 arbitration 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, AOL shall have the right, at its expense, to
conduct a reasonable and necessary copying and inspection of portions of the
Records of ICP that are directly related to amounts payable to AOL pursuant to
this Agreement, which right may, at AOL's option, be exercised by directing an
independent certified public accounting firm to conduct such inspection. For the
sole purpose of ensuring compliance with this Agreement, ICP 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 AOL that are
directly related to amounts payable to ICP 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, AOL shall be entitled to provide ICP 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
"AOLNotice@aol.com" 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.
703-265-1206) and the Deputy General Counsel (fax no. 703-265-1105), 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 by the other Party.
Survival. Sections IV, V, VI, VII and VIII of this Exhibit C, shall survive the
completion, expiration, termination or cancellation of this Agreement. In
addition, all payment terms of this Agreement and any provision that expressly
states that it shall survive or which, by its nature, must survive the
completion, expiration, termination or cancellation of this Agreement, 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 the 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, without
limitation, by way of merger, consolidation or sale of all or substantially all
of ICP's stock or assets) shall be subject to AOL's prior written approval.
Further, AOL shall have the right to terminate this Agreement upon written
notice to ICP in the event of (i) any Change of Control of ICP or other
transaction, in either case which results in ICP controlling, being controlled
by, or being under common control with, an Interactive Service, or (ii) any
Change of Control of AOL. 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.
Subcontractors. To the extent ICP desires to utilize consultants or
subcontractors to perform a material portion of its obligations under this
Agreement, utilization of such consultants and/or subcontractors shall be
subject to AOL's prior written approval and ICP shall provide AOL with direct
contact information for the employees of such consultants and/or subcontractors
who are responsible for performing such obligations, which employees shall be
available during business hours for consultation with AOL. ICP shall be
responsible for ensuring that all consultants and subcontractors comply with
this Agreement and ICP shall be liable for any breaches of this Agreement caused
by any consultant or subcontractor.
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. 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.
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. Signatures sent by facsimile shall be deemed original
signatures.
20
<PAGE>
EXHIBIT D
Payment Terms*
Year 2000
---------
11/23/00 $500,000.00
12/15/00 $500,000.00
YEAR 2001
---------
1/1/01 $231,687.50
1/15/01 $231,687.50
2/1/01 $231,687.50
2/15/01 $231,687.50
3/1/01 $231,687.50
3/15/01 $231,687.50
4/1/01 $452,848.68
5/1/01 $452,848.68
6/1/01 $452,848.68
7/1/01 $452,848.68
8/1/01 $452,848.68
9/1/01 $452,848.68
10/1/01 $452,848.68
11/1/01 $452,848.68
12/1/01 $452,848.68
YEAR 2002
---------
1/1/02 $452,848.68
2/1/02 $452,848.68
3/1/02 $452,848.68
4/1/02 $452,848.68
5/1/02 $452,848.68
6/1/02 $452,848.68
7/1/02 $452,848.68
8/1/02 $452,848.68
9/1/02 $452,848.68
10/1/02 $378,598.68
Total Payments = $10,921,000
* This payment schedule is subject to the acceleration terms in Section 1.9.
21 CONFIDENTIAL
<PAGE>
EXHIBIT E
TECHNICAL OPERATING STANDARDS
1. Customized Site Infrastructure. ICP will be responsible for all
communications, hosting and connectivity costs and expenses associated with
the Customized Site. ICP will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet traffic
demands on the Customized Site from the AOL Network. ICP will design and
implement the network between the AOL Service and Customized Site such that
(i) no single component failure over which ICP exercises control will have
a materially adverse impact on AOL Members seeking to reach the Customized
Site from the AOL Network and (ii) no single line under material control by
ICP will run at more than 70% average utilization for a 5-minute peak in a
daily period. In the event that ICP elects to create a custom version of
the Customized Site in order to comply with the terms of this Agreement,
ICP will bear responsibility for all aspects of the implementation,
management and cost of such customized site.
2. Optimization; Speed. ICP will use commercially reasonable efforts to ensure
that: (a) the functionality and features within the Customized Site are
optimized for the client software then in use by AOL Members; and (b) the
Customized 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 the Customized Site's data transfers initiate within fewer than
fifteen (15) seconds on average. Prior to commercial launch of any material
promotions described herein, ICP will permit AOL to conduct performance and
browser compatibility testing of the Customized Site (in person or through
remote communications), with such commercial launch not to commence until
such time as AOL is reasonably satisfied with the results of any such
testing.
3. User Interface. ICP will maintain a graphical user interface within the
Customized 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 Placements 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. Technical Problems. ICP agrees to use commercially reasonable efforts to
address material technical problems (over which ICP exercises control)
affecting use by AOL Members of the Customized Site (an "ICP Technical
Problem") promptly following notice thereof. In the event that ICP is
unable to promptly resolve an ICP Technical Problem following notice
thereof from AOL (including, without limitation, infrastructure
deficiencies producing user delays), AOL will have the right to regulate
the promotions it provides to ICP hereunder until such time as ICP corrects
the ICP Technical Problem at issue.
5. Monitoring. ICP will ensure that the performance and availability of the
Customized Site is monitored on a continuous (24 X 7) basis. ICP will
provide AOL with contact information (including e-mail, phone, pager and
fax information, as applicable, for both during and after business hours)
for ICP's principal business and technical representatives, for use in
cases when issues or problems arise with respect to the Customized Site.
6. Telecommunications. Where applicable the ICP will utilize encryption
methodology to secure data communications between the Parties' data
centers. The network between the Parties will be configured such that no
single component failure will significantly impact AOL Users. The network
will be sized such that no single line over which the ICP has material
control runs at more than 70% average utilization for a 5-minute peak in a
daily period.
7. Security. ICP will utilize Internet standard encryption technologies (e.g.,
Secure Socket Layer - SSL) to provide a secure environment for conducting
transactions and/or transferring private member information (e.g. credit
card numbers, banking/financial information, and member address
information) to and from the Customized Site. ICP will facilitate periodic
reviews of the Customized Site by AOL in order to evaluate the security
risks of such site. ICP will promptly remedy any security risks or breaches
of security as may be identified by AOL's Operations Security team.
8. Technical Performance.
i. ICP will design the Customized Site to support the AOL-Client embedded
versions of the Microsoft Internet Explorer 4.XX and 5.XX browsers
(Windows and Macintosh), the Netscape Browser 4.XX and make
commercially reasonable efforts to support all other AOL browsers
listed at: "http://webmaster.info.aol.com."
22 CONFIDENTIAL
<PAGE>
ii. To the extent ICP creates customized pages on the Customized Site for
AOL Members, ICP shall develop and employ a methodology to detect AOL
Members (e.g., examine the HTTP User-Agent field in order to identify
the "AOL Member-Agents" listed at: http://webmaster. info.aol.com and
referenced under the heading "Browser Detection."
iii. ICP will periodically review the technical information made available
by AOL at http://webmaster.info.aol.com.
iv. ICP will design its site to support HTTP 1.0 or 1.1 as defined in RFC
1945 and to adhere to AOL's parameters for refreshing or preventing
the caching of information in AOL's proxy system as outlined in the
document provided at the following URL: http://webmaster.info.aol.com.
ICP is responsible for the manipulation of these parameters in web
based objects so as allow them to be cached or not cached as outlined
in RFC 1945.
v. Prior to releasing material, new functionality or features through the
Customized Site ("New Functionality"), ICP will use commercially
reasonable efforts to either (i) test the New Functionality to confirm
its compatibility with AOL Service client software and (ii) provide
AOL with written notice of the New Functionality so that AOL can
perform tests of the New Functionality to confirm its compatibility
with the AOL Service client software. Should any new material, new
functionality or features through the Customized Site be released
without notification to AOL, AOL will not be responsible for any
adverse member experience until such time that compatibility tests can
be performed and the new material, functionality or features qualified
for the AOL Service.
9. AOL Internet Services 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. Support to be provided by AOL is contingent on ICP providing to AOL
demo account information (where applicable), a detailed description of the
Customized Site's software, hardware and network architecture and access to
the Customized Site for purposes of such performance and the coordination
load testing as AOL elects to conduct.
10. Customized Programming. The terms and conditions of this Exhibit applicable
to the Customized Site shall apply equally to any Customized Programming
that is (a) programmememed in HTML or (b) web-based.
23 CONFIDENTIAL
<PAGE>
EXHIBIT F
---------
Keyword Guidelines
------------------
PRINT/GRAPHIC
o Required treatment: (AOL Triangle appears) America Online Keyword: eDiets
or
America Online Keyword: eDiets
o America Online must be spelled out
o Capitalization - listing shall appear in initial caps only Note: K of
Keyword must always be capitalized
o Font, Font style and Size must all be consistent
o Listing size must be of equal prominence to that of any/all other URLs
featured
o Equal prominence applies to size, voice-over support and length of listings
o Listings must be no less than 1/4 inch in height
TELEVISION/RADIO
o "America Online Keyword" must be announced fully
Example voiceover would read:
"For more information, please visit America Online Keyword: eDiets"
o Television listing must represent at least 28 scan lines
o Radio mention must be at least :03 in length
o AOL must approve all uses prior to usage
----------------------------------------
Logo Usage Guidelines
Not Allowed
> No color gradients
> No "filled" icons (must be solid)
> No different colors for triangle and the copy (must be all the same color)
> No words/copy on top of the logo or triangle
> No script writing of "America Online" used alone without triangle
> No adaptations of the icon or logo (i.e., don't turn it into a mountain or
Xmas tree)
> No America Online or AOL in all lower case letters (either use initial
caps. or all caps.)
> No turning logo on its side, upside down, etc.
> No changing the proportion of the logo
> No "deforming" the logo (stretching it out or making it "skinny")
> No giving the logo structural dimension or "blurring" the logo
> No reconfiguring the elements logo (i.e., don't put "America" on the left
of the triangle & "Online" on the right)
Registration marks
------------------
> Must have small registration marks ((R)) at the right-hand tip of the
triangle and at the tip of the "e" in "Online"
Approved Colors:
----------------
> black
> (reversed-out) white
> PMS 534 blue (NOTE: this is AOL's corporate color)
> PMS 286 blue
24 CONFIDENTIAL
<PAGE>
> Reflex blue
> PMS 123 yellow
> PMS 2617 purple
NOTE: the entire logo (triangle and type) must always be 100% of the same
color
25 CONFIDENTIAL
<PAGE>
EXHIBIT G
INTENTIONALLY LEFT BLANK
26 CONFIDENTIAL
<PAGE>
EXHIBIT H
---------
CO-BRANDING SPECS
-----------------
1) AOL Service Co-Branding Specs:
[GRAPHIC OMITTED]
27 CONFIDENTIAL
<PAGE>
2) NETSCAPE PARTNER CO-BRANDING REQUIREMENTS
NSCP partner co-branding guidelines are as follows:
NSCP header consists of the following sets of required elements:
o Netscape 6.0: 1.Netscape lockup / 2.Global Utility Bar / 3.Banner
Advertisement /4.Navigation path or breadcrumb / 5.Page Title / 6.Channel
Drop Down Menu
[GRAPHIC OMITTED]
28 CONFIDENTIAL
<PAGE>
NETSCAPE CO-BRANDING SPECS--Linked Content Pages
Pa
The Netscape 6.0 header consists of the following required elements:
1. Netscape lockup
2. Global Utility Bar
3. Banner Advertisement (either partner or Netscape inventory, as set forth in
Advertising section)
4. Navigation path or breadcrumb
5. Page Title
6. Channel drop down menu
[GRAPHIC OMITTED]
29 CONFIDENTIAL
<PAGE>
DEFINITIONS
-----------
o Breadcrumb. Navigational element included in all C-Frames and Headers which
demonstrates the click path the user has traveled to get to that particular
page. Appears above the page title (ie. You are here: Home > Entertainment
> Movies > Review). The NSCP breadcrumb will be the only breadcrumb allowed
on partner pages. Double bread crumbing (using the NSCP breadcrumb and a
partner breadcrumb) is confusing and does not accurately detail where the
user has come from.
o Center Column. Also know as main content area or content well. Serves as
the home for the bulk of partner content.
o
o Channel Index. Top level Netcenter topical pages that link off the homepage
and serve as an umbrella for relevant categorical Department pages. Usually
hosted and produced by Netscape.
o Co-branded Domain. All pages linked to via partnership must reside on the
partner's server at a co-branded Web address or domain (i.e.
Partner.netscape.com)
o Customized version of web site. Co-branded web site will be a customized
version of the Partner's public site. It may be identical to the Partner's
public site, but may be edited to strip out or include certain elements,
Programming and functionality as mutually agreed.
o Department. Areas of content divided into sub-categories relevant to the
Channel Index. Departments are linked from the Channel Index in the left
rail (column) navigation portion of the C-Frame. Unless the partner is
exclusive, Departments are usually hosted and produced by Netscape.
o Feature. Area of partner content on a NSCP Channel or Department page that
usually consists of a text link, blurb and image. Resides in the center
column in a content block.
o Footer. Resides below partner content at bottom of page. It is designed to
provide easy access to Netscape help and create consistency for users so
they can quickly navigate the site. Netscape provides the code to partners.
For design specification details refer to:
http://proto.mcom.com:888/nc21/html. [ID: partner; Password: c0nt3nt]
> Header. The header is designed to provide easy access to common utilities
and create consistency for users so they can quickly navigate the site.
Netscape provides the browser-appropriate code to partners. For design
specification details refer to: http://proto.mcom.com:888/nc21/html. [ID:
partner; Password: c0nt3nt]. The Netscape 6.0 header consists of the
following required elements: 1.Netscape Netcenter lockup / 2.Global Utility
Bar / 3.Banner Advertisement /4.Navigation path or breadcrumb / 5.Page
Title / 6.Channel drop down menu.
o Hosting. Refers to the server on which the content lives. Netscape usually
hosts Channel Index and Department level pages, while partners host all
other co-branded content. If the partner has "exclusive" status with regard
to a particular Department, they would host that page.
o Left Rail. Area on C-Framed pages which sits to the left of the main
content area and contains links to Department pages, Chat, Search
Categories and other main elements of Netscape navigation.
o Navigation. Refers to how the user gets from one area to another within the
Netscape or partner customized site. On Channel Index and Department pages,
the navigational element is contained within the left rail. On partner
hosted pages, the Header/Footer acts as the navigational element.
o Page title. The name of the page the user is viewing. Included in all
C-Frames and Headers. Partner logo. Appears either beside content in center
column or aligned with the page title, depending on deal type. Logo is an
image created by partner and must conform to Netscape design
specifications. For design specification details refer to:
http://proto.mcom.com:888/nc21/html. [ID: partner; Password: c0nt3nt]
o Partner produced. Co-branded pages, which live on the partner's server,
will be created and maintained by the partner.
o Right rail. Area on Netscape Channel and Department pages which sits to the
right of the main content area. Usually contains two tile ads, tools and
text links.
o Search Categories. Area contained in the left rail reserved for
Channel-related Netscape search directory links.
o Text branding. Instead of a logo, Netscape reserves the right to use text
branding in right rail placements and in certain instances the center
column.
o Text Link. A link to partner content that stands alone in the right column
or along with features in the center column. Usually not branded.
o Utility/Widget/Tool. Refers to polls, search fields, pull down menus and
any script-based code or interactive tool which provides results pages.
Typically, utility code and results pages are created and provided by
partner.
30 CONFIDENTIAL
<PAGE>
4) CompuServe Co-Branding Specs:
[GRAPHIC OMITTED]
31 CONFIDENTIAL