Interactive Services Agreement - America Online Inc. and E-Sport Inc., Pro Sports Xchange Inc. and Athlete Direct Inc.
Execution Copy
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
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This agreement (the "Agreement"), effective as of January 1, 1999 (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, on the one hand, and E-Sport, Inc. ("E-Sport"), a
Delaware corporation, with its principal offices at 1640 S. Sepulveda Blvd.,
Suite 500, Los Angeles, California 90025, and its wholly-owned subsidiaries, Pro
Sports Xchange, Inc. ("PSX"), a Delaware corporation, successor-in-interest to
Pro Sports Xchange, a California limited liability company, with its principal
offices at 1640 S. Sepulveda Blvd., Suite 500, Los Angeles, California 90025 and
Athlete Direct, Inc. ("Athlete Direct"), a Delaware corporation, successor-in-
interest to Athlete Direct, LLC, a California limited liability corporation,
with its principal offices at 1640 S. Sepulveda Blvd., Suite 500, Los Angeles,
California 90025 (E-Sport, PSX and Athlete Direct shall be collectively referred
to herein as "Interactive Content Provider" or "ICP") (each of AOL and ICP shall
be referred to herein as a "Party" and collectively as the "Parties").
INTRODUCTION
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AOL and ICP each desires that ICP provide the Online Area (as defined
below), including ICP data feeds as specified herein and certain AOL
screens/pages through the AOL Network (as defined below), subject to the terms
and conditions set forth in this Agreement. Defined terms used but not defined
in the body of the Agreement or in Exhibits A or C shall be as defined on
Exhibit B attached hereto.
TERMS
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1. DISTRIBUTION; PROGRAMMING
1.1 Online Area. ICP shall work diligently to develop and implement the
Online Area, consisting of the specific Content described on Exhibit
A.1 attached hereto. ICP shall develop the design of the Online Area
in consultation with AOL and in accordance with any standard design
and content publishing guidelines provided to ICP by AOL (including,
without limitation, any HTML publishing guidelines). ICP shall not
authorize or permit any third party to distribute the Licensed Content
on ICP's behalf through the AOL Network absent AOL's prior written
approval. The inclusion of any additional Content in the Online Area
(including, without limitation, any features, functionality or
technology) not expressly described on Exhibit A shall be subject to
AOL's prior written approval.
1.2 Licenses.
1.2.1 License to Licensed Content (other than Feeds). ICP hereby
grants AOL a non-exclusive, worldwide license to use, market,
store, distribute, display, communicate, perform, transmit and
promote the Licensed Content (other than the Feeds), (or any
portion thereof) as provided herein, through such areas or
features of the AOL Network as AOL deems appropriate.
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1.2.2 License to Feeds. In addition, ICP hereby grants AOL a non-
exclusive, worldwide license (i) to use, market, store,
distribute, display, communicate, perform, transmit and promote
the Feeds (as defined in Exhibit A), (or any portion thereof),
through the AOL Service and AOL.com., AOL's primary site on the
World Wide Web portion of the Internet and all AOL branded and
co-branded Internet sites providing content and promotions for
AOL products and services, together with any mirrored or
similar versions of such site(s) (collectively, "AOL.com"), and
(ii) to sublicense its rights under this Section 1.2.2 to third
parties producing programming for AOL.com for the sole purpose
of enabling such third parties to produce such AOL-branded or
AOL co-branded programming for AOL.com as provided below. To
the extent that the Feeds (or any portion thereof) are
distributed by AOL on AOL.com or on non-AOL Service areas of
the AOL Network, AOL shall (a) ensure that the Feeds will be
distributed on pages that are predominantly AOL-branded
(including, for example,"AOL.com Sports Web Center powered by
____", "Presented By" and "AOL.com/___"), (b) credit ICP as the
source of such Content, (c) promote the Premium Information
Products as a part of such Content (e.g., minimum text link at
the bottom of an article), and (d) not place the Feeds in such
close proximity to a third party brand so as to reasonably lead
to the conclusion that the Feeds are Content of such third
party. Nothing contained in this Section 1.2.2 shall be
construed to prevent or limit the offer, license or sale of
Advertisements anywhere on the AOL Network. Subject to payment
by AOL pursuant to Section 1.6(iv) below, ICP agrees to grant
to AOL a license to distribute the Feeds (or any portion
thereof) on other sites or properties owned or controlled by
AOL or its Affiliates which are not covered herein.
1.2.3 Feeds. ICP represents and warrants to AOL that it has the
authority to grant the above licenses to AOL (either through
ownership or license) to use the Licensed Content as described
in this Agreement. ICP shall provide AOL the Licensed Content
in the form or media reasonably necessary for AOL to distribute
it on the AOL Network as further set forth on Exhibits A and E-
1 attached hereto. Without limiting the generality of the
foregoing, during the Term of this Agreement, AOL may store via
mirrored data centers, tape, optical disks, or magneto optical
disks backup copies of the Feeds solely for purposes of record-
keeping, defending against third-party claims, responding to
official inquiries, and fulfilling its obligations and
exploiting the rights granted to AOL pursuant to this
Agreement. Under no circumstances will AOL use such Feeds for
any other purpose during the Term of this Agreement. It is
expressly understood that following the expiration or
termination of this Agreement, AOL shall have the right to use
the Licensed Content, including without limitation, the Feeds,
for a runoff period not to exceed ninety (90) days in the same
manner as such Content is permitted to be used during the Term.
Nothing in this Agreement shall constitute a sale or other
transfer of title from ICP to AOL of the Licensed Content, or
any portion thereof. All rights with respect to the Licensed
Content not expressly granted to AOL herein are reserved to
ICP.
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1.2.4 Ownership. AOL shall own, and ICP shall have no right, title
or interest in or to, all Top Level Screens. ICP shall own, and
AOL shall have no ownership right, title or interest in or to,
the Other Screens.
1.3 Other Interactive Areas.
1.3.1 AOL Approval. [*]. AOL hereby approves the links to the sites
set forth in Exhibit I, subject to AOL's right to withdraw its
approval if there are any substantive changes to the Content
contained in such linked sites. In addition, AOL may reasonably
restrict its approval (at any time) to specific portions of
Content, Products, or functionality within a Linked Interactive
Site, including without limitation, those sites set forth in
Exhibit I. In such case, establishment of the link from the
Licensed Content to the Linked Interactive Site will be subject
to mutual agreement of the Parties regarding the means by which
access will be restricted to the approved portions of the
Linked Interactive Site. AOL shall give ICP a five (5) day
period to remove any specific Content, Products or
functionality within a Linked ICP Interactive Site that AOL
restricts its approval to pursuant to this Section 1.3.1 before
terminating the link to such site. All Linked ICP Interactive
Sites shall comply with the Operating Standards set forth in
Exhibit E-2.
1.3.2 Management. AOL shall have no obligations of any kind with
respect to any Linked Interactive Site. ICP shall be
responsible for any hosting or communication costs associated
with any Linked Interactive Sites (including, without
limitation, the costs associated with (i) any agreed-upon
direct connections between the AOL Network and a Linked
Interactive Site or (ii) a mirrored version of a Linked
Interactive Site). Any Linked Interactive Sites shall be
subject to the license set forth in Section 1.2.1 above. ICP
will permit AOL Members to access and use any Linked ICP
Interactive Site free of charge during the Term if such Linked
ICP Interactive Site is generally available to users (other
than ICP employees, agents, contractors and partners) free of
charge. If such Linked ICP Interactive Site is not generally
provided to any such users free of charge, then the terms and
conditions for AOL Members shall be no less favorable than for
any other user. AOL Members shall not be required to go through
a registration process (or any similar process) in order to
access and use any Linked ICP Interactive Site; provided,
however, that the Parties agree and acknowledge that some
features or areas of the Linked ICP Interactive Site may
require a registration process for all users generally (e.g. a
premium service) and that such registration process for AOL
Members shall be no more burdensome than for any other user and
shall be upon terms and conditions no less favorable than for
any other user. For a period of two years after the expiration
or earlier termination of this Agreement, ICP will allow AOL
Members to access any non-Premium Information Products on any
former Linked ICP Interactive Site
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(or any successor thereto) on terms and conditions no less
favorable than the terms and conditions available to other
users of such ICP Interactive Site.
1.3.3 Excessive Traffic Diversion. ICP shall use commercially
reasonable efforts to ensure that AOL traffic is generally
either kept within a Linked ICP Interactive Site or channeled
back into the AOL Network. To the extent that AOL notifies ICP
in writing that, in AOL's reasonable judgment, links from the
Linked ICP Interactive Site cause an excessive amount of AOL
traffic to be diverted outside of such site and the AOL Network
in a manner that has a detrimental effect on the traffic flow
of the AOL audience, then ICP shall immediately reduce the
number of links out of such site(s). In the event that ICP
cannot or does not so limit diverted traffic from the Linked
ICP Interactive Site, AOL reserves the right to terminate the
links from the AOL Network to the Linked ICP Interactive Site
at issue if such failure remains uncured after thirty (30) days
written notice thereof.
1.4 Placements. ICP shall pay AOL (in accordance with Section 1.5 below),
and AOL shall provide to ICP the marketing and promotional rights
("Placements") set forth in Exhibit A.4. The Placements and any other
promotions or advertisements (other than AOL Advertisements which ICP
has a right to sell pursuant to Section 2.1 of this Agreement)
purchased from or provided by AOL pursuant to Exhibit A of this
Agreement will be used by ICP solely for its own benefit and will not
be resold, traded, exchanged, bartered, brokered or otherwise offered
to any third party.
1.5 Placements Payments. For the Placements, ICP shall pay AOL the
following amounts:
(i) First Year (January 1, 1999 to December 31, 1999). For the
first year of the Term, ICP shall pay AOL two million seven hundred
eighty thousand dollars ($2,780,000) for the Placements.
(ii) Second Year (January 1, 2000 to December 31, 2000). For the
second year of the Term, ICP shall pay AOL two million seven hundred
eighty thousand dollars ($2,780,000) for the Placements.
(iii) Last Six Months of Initial Term (January 1, 2001 to June 30,
2001). For the last six (6) months of the Initial Term, ICP shall pay
AOL one million three hundred ninety thousand dollars ($1,390,000) for
the Placements.
1.6 Content Payments. For the Licensed Content and production and other
services to be provided pursuant to this Agreement, AOL shall pay ICP
as follows:
(i) First Year (January 1, 1999 to December 31, 1999). For the
first year of the Term, AOL shall pay ICP [*].
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(ii) Second Year (January 1, 2000 to December 31, 2000). For the
second year of the Term: AOL shall pay ICP [*].
(iii) Last Six Months of Initial Term (January 1, 2001 to June 30,
2001). For the last six (6) months of the Initial Term: AOL shall pay
ICP [*].
(iv) Additional Payments. AOL shall pay ICP [*] for each additional
license granted to AOL by ICP pursuant to the final sentence of
Section 1.2.2 above. Such payment shall be added to the Content
Payments to be made by AOL pursuant to subsections 1.6(i)-(iii) above.
1.7 Net Payments. The Parties shall satisfy their obligations under
Sections 1.5 and 1.6 through net payments as follows: AOL shall pay to
ICP the following net amounts: (a) [*] for each of the first three (3)
months of the Initial Term, and (b) [*] for each of the remaining
months of the Initial Term.
1.8 Exclusivity. ICP shall comply with the exclusivity restrictions set
forth on Exhibit A.2.
2. ADVERTISING AND TRANSACTIONS
2.1 Advertising Sales. AOL owns all right, title and interest in and to
the advertising and promotional spaces within the AOL Network
(including, without limitation, advertising and promotional spaces on
any AOL forms or pages preceding, framing or otherwise associated with
the Licensed Content or preceding, following or framing any Linked
Interactive Sites). The specific advertising inventory within any AOL
forms or pages shall be as reasonably determined by AOL. AOL shall
have the [*] right to sell [*] on the [*]. AOL hereby grants ICP the
[*] right to license or sell AOL Advertisements on the [*] subject to
AOL's approval for each AOL Advertisement, which approval shall not be
unreasonably withheld.
2.2 Advertising Policies.
2.2.1 AOL Advertisements. Any AOL Advertisements sold by ICP or its
agents shall be subject to AOL's then-standard advertising
policies, exclusivity commitments, and other preferential
contractual commitments to third parties which are applicable
to AOL and those exclusivities that AOL grants to itself for
its own business(es). AOL's current list of exclusivity
commitments are set forth in Exhibit J (the "Exclusivity
List"). AOL may update the Exclusivity List from time to time
and Advertisements sold to entities in categories not on the
Exclusivity List at the time such Advertisement was sold shall
not be a breach of contract, but ICP shall immediately remove
such Advertisement upon notification from AOL that such
Advertisement violates an AOL exclusivity or other preferential
contractual commitment. ICP shall not sell an AOL Advertisement
to any entity reasonably construed to be in competition with
AOL.
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2.2.2 Linked Interactive Site Advertisements. ICP shall ensure that
AOL Members linking to any Linked ICP Interactive Site (other
than the Stars Web Area) from the AOL Network do not receive
advertisements, promotions or links (i) for any entity
reasonably construed to be in competition with AOL, (ii) in
violation of AOL's then-standard advertising policies, or (iii)
in violation of AOL's exclusivity or other preferential rights
or commitments [*] Online Area and/or the AOL Network. AOL
shall use commercially reasonable efforts to discuss any
reasonable ICP request for an exception to the preceding
subclause (iii). In the event that AOL notifies ICP in writing
that any advertising or promotional Content in or through any
Linked ICP Interactive Site (a "Linked ICP Interactive Site
Advertisement") is in violation of AOL's then-standard
advertising policies or this Section 2.2.2, then ICP shall take
[*] steps to block access by AOL Members to such advertising
using ICP's then-available ad server or other technology. In
the event that ICP cannot, through its [*], block access by AOL
Members to the advertising in question, then ICP shall provide
AOL prompt written notice of such fact. AOL may restrict access
from the AOL Network to the advertising in question using
technology available to AOL or, in the event such restricted
access is not reasonably practicable, as determined by AOL in
AOL's sole discretion, terminate the link from the AOL Network
to the Linked ICP Interactive Site until such time as the
advertising in question is no longer displayed. ICP will
cooperate with AOL's reasonable requests to the extent AOL
elects to implement any such access restrictions.
2.3 Advertising Registration Form. In connection with the sale by ICP or
its agents of an AOL Advertisement, ICP shall, in each instance,
provide AOL with a completed standard AOL Advertising Registration
Form relating to such AOL Advertisement. ICP shall take all
reasonable steps necessary to ensure that any AOL Advertisement sold
by ICP complies with all applicable federal, state and local laws and
regulations.
2.4 Advertising Revenues. AOL shall be entitled to [*] of all Advertising
Revenues generated by the license or sale of AOL Advertisements on the
[*]. ICP shall be entitled to [*] of Advertising Revenues generated by
the license or sale of AOL Advertisements on the [*].
2.5 Interactive Commerce. To the extent ICP desires to offer, sell or
license Products, such merchandising shall be subject to (i) the terms
of this Agreement, (ii) the requirements posted at keyword
"Marketplace Policy" on the America Online brand service (or such
other keyword as AOL may designate during the Term), (iii) approval by
AOL of all categories of Products to be offered, (iv) the payment to
AOL of [*] of all Transaction Revenues for Premium Information
Products, Sports Entertainment Products and Memorabilia Products and
[*] of Transaction Revenues for all other Products, (v) the then-
current requirements of AOL's merchant certification program, (vi) ICP
implementing sufficient procedures to protect the security of all
merchandising on a Linked ICP
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Interactive Site (i.e., ICP shall as of the Effective Date use 40-bit
SSL technology and, if requested by AOL upon thirty (30) days notice
thereof to ICP, 128-bit SSL), and (vii) the requirement that ICP take
all reasonable steps necessary to conform its promotion and sale of
Products through a Linked ICP Interactive Site 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 ICP Linked Interactive upon thirty (30) days notice thereof to
ICP. For purposes of subsection (iii) above, AOL hereby approves the
categories of products set forth in Exhibit I, subject to AOL's right
to withdraw its approval of any category of Product which violates
AOL's exclusivity or preferential contractual commitments as specified
in Exhibit I. If, in accordance with Section 1.3.1, AOL approves a
link from the Online Area to a site on the World Wide Web portion of
the Internet where Products are sold, ICP and AOL shall agree upon an
appropriate revenue share for sales of Products to AOL Members at such
site. Until such time as an agreement is reached, AOL shall be
entitled to [*] of all Transaction Revenues generated from such site.
Third parties shall not be authorized or permitted to sell Products.
The preceding sentence shall not prevent ICP from selling Products it
buys or licenses from third parties.
2.6 Member Benefits. ICP will generally promote through the Online Area
any special or promotional offers related to the Licensed Content made
generally available by or on behalf of ICP through any other similar
or like distribution channel. In addition, ICP shall promote through
the Online Area on a regular and consistent basis special offers
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).
The AOL Exclusive Offer made available by ICP shall provide a
substantial member benefit to AOL Members, either by virtue of a
meaningful price discount, product enhancement, unique service benefit
or other special feature. Specific AOL Exclusive Offers to be made
available by ICP shall include the following: discounts from regularly
priced sports memorabilia, licensed sports products, and sports
collectibles. 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.
3. PRODUCTION AND SUPPORT
3.1 Production Work.
(i) AOL Pages. AOL shall build the Team Pages (as defined in
Exhibit A) and Star Pages (as defined in Exhibit A) and such pages
shall be programmed and populated by ICP in accordance with this
Agreement. The forms of the Team Pages and Star Pages shall be as
determined by AOL after consultation with ICP.
(ii) Production Responsibility. Except as otherwise provided
herein, ICP shall be responsible for all production, including
maintenance, of the Stars Online Area. Unless otherwise mutually
agreed upon in writing, ICP shall be responsible for all changes to
the Team Online Area or the Feeds. AOL shall bear the expense of any
production work performed by ICP (and AOL will not charge ICP for any
production work performed by AOL) relating to the Team Online Area or
the Feeds (a) which is not requested by ICP, or (b) which is mutually
agreed upon by the Parties in good faith within the parameters of this
Agreement. Any
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change requested by ICP shall require AOL's prior approval, but such
approval shall not signify mutual agreement of a change giving rise to
AOL's responsibility to bear the expense of such change unless so
stated in writing.
(iii) AOL Assistance with ICP's Production Responsibilities. In the
event that ICP requests AOL's production assistance relating to the
Stars Online Area in connection with (i) the initial development,
design and construction of the Stars Online Area, (ii) ongoing
programming and maintenance related to the Stars Online Area, (iii) a
redesign of or addition to the Stars Online Area (e.g., a change to an
existing screen format or construction of a new custom form), (iv)
construction and maintenance of an approved advertising, sponsorship
or promotional area or online "store," (v) production to modify work
performed by a third party provider or (vi) any other type of
production work, ICP shall work with AOL to develop detailed
production plans for the requested production assistance (the
"Production Plan"). Following receipt of the final Production Plan,
AOL shall notify ICP of (i) AOL's availability to perform the
requested production work, (ii) the proposed fee or fee structure for
the requested production and maintenance work and (iii) the estimated
development schedule for such work. To the extent the Parties reach
agreement regarding implementation of an agreed-upon Production Plan,
such agreement shall be reflected in a separate work order signed by
the Parties. All fees to be paid to AOL for any such production work
shall be paid in advance. 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 Stars Online Area ("Routine Services"), ICP will pay the then-
standard fees charged by AOL for such Routine Services.
(iv) Third Party Content. AOL will work to facilitate securing
necessary rights for ICP to utilize certain Content (e.g., initially,
AP news and photographs, SportsTicker, or substitutes therefor)
necessary to produce the Team Online Area and AOL shall bear the
reasonable cost of providing ICP access to such Content; provided
that, the Parties acknowledge that certain third party consents may be
necessary to secure such rights and that AOL shall not be in breach of
contract if it is unable to secure such rights through reasonable
efforts and ICP shall not be in breach of contract if ICP's failure to
produce and program the Team Online Area is caused solely by AOL's
inability to secure such rights. ICP shall utilize such third party
Content solely to perform its obligations hereunder and for no other
purpose. In addition, ICP shall ensure that its utilization of any
news feeds and/or other third party Content provided by AOL to ICP
hereunder complies with any and all contractual terms and conditions
on use to which AOL is subject as communicated by AOL to ICP in
writing or by email.
3.2 Publishing and Production Tools. AOL shall provide to ICP, at no
cost to ICP, those of AOL's proprietary publishing tools (each a
"Tool") reasonably necessary (as determined by AOL) for ICP to develop
and implement the Licensed Content during the Term. ICP shall be
granted a nonexclusive license to use any such
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Tool, which license shall be subject to: (i) ICP's compliance with all
rules and regulations relating to use of the Tools, as published from
time to time by AOL, (ii) AOL's right to withdraw or modify such
license at any time, and (iii) ICP's express recognition that AOL
provides all Tools on an "as is" basis, without warranties of any
kind. If any withdrawal or modification pursuant to (ii) above has a
material adverse effect upon ICP's ability to develop and implement
the Licensed Content, ICP shall not be in breach of this Agreement for
any consequent ICP failure to develop and implement the Licensed
Content as required by this Agreement.
3.3 Training and Support. AOL shall make available to ICP standard AOL
training and support programs related to ICP's management and
maintenance of the Licensed Content. ICP can select its training and
support program from the options then offered by AOL. ICP shall be
responsible to pay the fees associated with its chosen training and
support package. In addition, ICP will pay travel and lodging costs
associated with its participation in any AOL training programs
(including AOL's travel and lodging costs when training is conducted
at ICP's offices).
4. PROMOTION
4.1 Cooperation. Each Party shall cooperate with and reasonably assist
the other Party in supplying Content for marketing and promotional
activities which relate to the Online Area.
4.2 Interactive Site. The following promotions (collectively, the "AOL
Promos") shall be included within each Linked ICP Interactive Site and
any other ICP Interactive Site controlled by ICP and providing a
substantial portion of Content substantially the same as or similar
to, the Licensed Content or any Linked ICP Interactive Site, (i.e.,
currently, http://www.athletedirect.com and http://www.psx.com) and
all successors thereto : (i) a prominent promotional button (at least
90 x 30 pixels or 70 x 70 pixels in size) appearing on the main screen
of such ICP Interactive Site to promote such AOL products or services
as AOL may reasonably designate (for example, the America Online brand
service, the CompuServe brand service, the AOL.com site, the Digital
City services or the AOL Instant Messenger service); and (ii) a
prominent "Try AOL" feature (at least 90 x 30 pixels or 70 x 70 pixels
in size) through which users can obtain promotional information about
AOL products or services designated by AOL and, at AOL's option,
download or order the then-current version of client software for such
AOL products or services. AOL will provide the creative content to be
used in the AOL Promos. ICP shall post (or update, as the case may
be) the creative content supplied by AOL within the spaces for the AOL
Promos within five days of its receipt of such content from AOL.
Without limiting any other reporting obligations of the Parties
contained herein, ICP shall provide AOL with monthly written reports
specifying the number of impressions to the pages containing the AOL
Promos during the prior month. In the event that AOL elects to serve
the AOL Promos to such ICP Interactive Site from an ad server
controlled by AOL or its agent, 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 such ICP Interactive Site on which the AOL Promos will
appear. In addition, within each such ICP Interactive Site, ICP
shall,
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[*], provide (a) prominent promotion for the keywords associated with
ICP's Online Area, and (b) links from the Linked ICP Interactive Site
to the relevant topic areas on AOL's AOL.com site; provided that, ICP
shall provide substitute promotion, as mutually agreed upon by the
Parties, in instances in which such promotion is not commercially
practicable (i.e., given time and space constraints).
4.3 Other Media. In ICP's television, radio, print and "out of home"
(e.g., buses and billboards) advertisements relating to the Teams
Content and/or the Feeds and in any publications, programs, features
or other forms of media relating to the Teams Content and/or the Feeds
over which ICP exercises editorial control, ICP will include specific
references or mentions (verbally where possible) of the availability
of ICP's Online Area through the America Online brand service, [*], as
any references that ICP makes to the Teams Content and/or the Feeds or
any ICP Interactive Site controlled by ICP and providing a substantial
portion of Content substantially the same as or similar to, the
Licensed Content or any Linked ICP Interactive Site (i.e., currently,
http://www.athletedirect.com and http://www.psx.com) and all
successors thereto (by way of site name, related company name, URL or
otherwise). Without limiting the generality of the foregoing, [*],
ICP's listing of the "URL" for such Licensed Content or ICP
Interactive Site will be accompanied by a prominent listing of the
"keyword" term on AOL for the appropriate Online Area.
4.4 Preferred Access Provider. When promoting AOL, ICP shall promote AOL
as a preferred access provider through which a user can access ICP's
Content and shall use commercially reasonable efforts to promote AOL
as prominently as any other Internet service provider as part of ICP's
promotion of the Licensed Content hereunder.
4.5 Promotion of Athletes. ICP shall secure the promotional rights set
forth in Exhibit A.3 with respect to each Athlete and Columnist (as
defined in Exhibit A).
5. PAYMENTS AND REPORTING.
5.1 Payment Schedule. Except as otherwise specified in Section 1.7, each
Party agrees to pay the other Party all amounts received and owed to
the 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 begin on the first day of the month following the month of
execution of this Agreement and (ii) include the portion of the month
of execution following the Effective Date (unless the Agreement was
executed on the first day of a month, in which case the quarter begin
shall be deemed to begin on the first day of such month).
5.2 Reporting. On no less than a monthly basis, each Party shall supply
or make available to the other Party reports containing the following
information:
5.2.1 Usage Data. AOL shall make available to ICP a monthly report
specifying usage information for the Online Area for the prior
month in the format
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which is generally made available to similarly situated
interactive content providers. In addition, for any Linked ICP
Interactive Site which AOL is caching, AOL shall supply ICP
with monthly reports reflecting aggregate impressions by AOL
Members to the cached version of the Linked ICP Interactive
Site during the prior month. For each Linked ICP Interactive
Site, ICP will supply AOL with monthly reports which reflect
total impressions by AOL Members to the Linked ICP Interactive
Site during the prior month.
5.2.2 Sales Reports. ICP will provide AOL in an automated manner
with a monthly report in an AOL-designated format, detailing
the following AOL Purchaser activity in such period (and any
other information mutually agreed upon by the Parties or
reasonably required for measuring revenue activity by ICP
through the Linked ICP Interactive Sites): (i) summary sales
information by day (date, number of Products, number of orders,
total Transaction Revenues); and (ii) detailed sales
information (order date/timestamp (if technically feasible),
AOL Purchaser name and screenname, SKU or Product description)
(information in clauses (i) and (ii), "Sales Reports"). AOL
will be entitled to use the Sales Reports in its business
operations, subject to the terms of this Agreement. More
generally, each payment to be made by ICP pursuant to Section
2.5 will be accompanied by a report containing information
which supports the payment, including information identifying
gross Transaction Revenues and all items deducted or excluded
from gross Transaction Revenues to produce Transaction
Revenues, including, without limitation, chargebacks and
credits for returned or canceled goods or services (and, where
possible, an explanation of the type of reason therefor, e.g.,
bad credit card information, poor customer service, etc.),
revenue sharing with an ICP Marketing Partner (as defined in
Exhibit B).
5.2.3. Promotional Commitments. ICP shall provide to AOL a monthly
report documenting its compliance with any promotional
commitments it has undertaken pursuant to Section 4 in the form
attached as Exhibit D hereto.
5.2.4. Exclusivity Restrictions. ICP shall submit to AOL a monthly
certification that it is in full compliance with all
exclusivity restrictions set forth in this Agreement in the
form attached as Exhibit D hereto.
6. TERM, TERMINATION AND COMMERCIAL LAUNCH.
6.1. Term. Unless earlier terminated as set forth herein, the initial
term of this Agreement shall be thirty (30) months from the Effective
Date ("Initial Term"). Upon the expiration of the Initial Term, AOL
shall have the right to renew this Agreement for up to two successive
one year terms (each, a "Renewal Term" and together with the Initial
Term, the "Term"). ICP shall have the option to terminate this
Agreement upon ninety (90) days notice within thirty (30) days after
the beginning of any Renewal Term. ICP's obligations with respect to
the Stars Online Area shall begin immediately; however, the Stars
Online Area shall be exclusive to AOL in the same manner as is
provided in the Athlete Direct Interactive Service Agreement (as
defined below) until and including March 31,
CONFIDENTIAL 11
<PAGE>
1999. Nothing contained in this Agreement shall modify or amend that
certain Interactive Services Agreement by and between AOL and Athlete
Direct, LLC, a California limited liability corporation, dated April
1, 1997 (the "Athlete Direct Interactive Services Agreement"),
including without limitation, the exclusivities set forth therein. The
Parties agree and acknowledge that the Athlete Direct Interactive
Services Agreement will expire on March 31, 1999. 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.
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.
6.3 Termination for Bankruptcy/Insolvency. Either Party may terminate
this Agreement immediately following written notice to the other Party
if the other Party (i) ceases to do business in the normal course,
(ii) becomes or is declared insolvent or bankrupt, (iii) is the
subject of any proceeding related to its liquidation or insolvency
(whether voluntary or involuntary) which is not dismissed within
ninety (90) calendar days or (iv) makes an assignment for the benefit
of creditors.
6.4 Site and Content Preparation. ICP shall achieve Site and Content
Preparation of the Teams Online Area (as defined in Exhibit A) and the
Star Pages (as defined in Exhibit A) on or before March 15, 1999, the
Athlete Online Areas as defined and set forth in Exhibit A and the
rest of the Star Online Area (as defined in Exhibit A) on or before
March 31, 1999. "Site and Content Preparation" shall mean that ICP
shall have completed production of the Online Area and the Licensed
Content in accordance with this Agreement and completed all other
necessary work to prepare the Online Area and the Licensed Content 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 on or before February 15, 1999, then AOL shall
work with ICP to identify any deficiencies in the Teams Online Area
and Stars Pages and specifying in writing or by email the work that
needs to be completed by ICP in order to achieve Site and Content
Preparation. If ICP has not completed such work by March 15, 1999 for
the Teams Online Area and the Star Pages, the dates provided in
Exhibit A for the Athlete Online Areas and by March 31, 1999 for the
rest of the Stars Online Area, 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 and Content Preparation 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 timeframe referenced in
this Section shall each be extended by the amount of time of ICP's
delay solely attributable to such failure by AOL.
6.5 Termination of Prior Agreement. As of the Effective Date, the
following agreement shall terminate by mutual agreement: that certain
Content License Agreement by and between Extreme Fans, Inc., an
Illinois corporation d.b.a. Real Fans ("Real Fans") and PSX, dated as
of February, 1997, that certain First
CONFIDENTIAL 12
<PAGE>
Amendment to Content License Agreement, dated August 1, 1997 and that
certain Second Amendment to the Content License Agreement, dated as of
October 1, 1997 (collectively, "Content License Agreement"). PSX
acknowledges and agrees that (i) AOL and Real Fans have fulfilled all
of Real Fans' obligations to PSX under the Content License Agreement,
(ii) AOL has no further obligations to ICP in connection with or
related in any way to Real Fans, (iii) ICP does not have and will not
make any other claims against Real Fans or AOL, or their directors,
officers, employees or agents, for additional sums of money or
otherwise, in connection with or related in any way to Real Fans (iv)
upon payment of the [*] set forth below, Real Fans will have no
further obligations to ICP, (iv) upon payment of the [*] set forth
below, ICP does not have and will not make any other claims against
Real Fans, or its directors, officers, employees or agents, for
additional sums of money or otherwise. As of January 15, 1999, ICP
shall perform Real Fans' obligations to subscribers to fulfill the
Subscription Reports which obligations were made known to ICP by Real
Fans as of January 15, 1999 in exchange for [*] which amount shall be
paid upon full execution of this Agreement. As used herein,
"Subscription Reports" shall mean "PSX E-Mail Reports", "CSX E-Mail
Reports", "CSX Basketball E-Mail Reports" and "PSX Hockey E-Mail
Reports" (as defined in the Content License Agreement) sold by Real
Fans on a subscription basis to subscribers and packaged in several
different formats (e.g. all baseball teams, American League baseball
teams, etc.).
6.6 Termination for Change of Control/Ownership. At any time after a
Change of Control of ICP to a Prohibited Party, AOL may terminate this
Agreement upon [*] written notice thereof.
6.7 AOL Option. Without limiting any rights or remedies AOL may have
pursuant to this Agreement, including without limitation, any other
termination rights AOL may have, AOL shall have the option to
terminate this Agreement for any reason or no reason whatsoever at any
time after the first anniversary date of the Effective Date of this
Agreement upon six (6) months prior written notice thereof to ICP;
provided that, unless such written notice has been given in the first
ten (10) days of a calendar quarter (in which case such termination
shall be effective six (6) months after the first day of such
quarter), such termination shall not be effective until six (6) months
after the first day of the immediately following calendar quarter.
6.7.1 Option Fee. If AOL exercises its option to terminate this
Agreement pursuant to this Section 6.7, AOL shall (i) pay ICP
[*] in cash (the "Cash Fee") within thirty (30) days after the
date the termination becomes effective (the "Termination
Date"), (ii) provide ICP with the Additional Advertisements as
set forth herein (collectively, the "Option Fee"). Until the
Termination Date, AOL shall provide to ICP the Total
Impressions Commitment (as defined in Exhibit A.4) on a pro
rata basis. After the Termination Date, AOL shall provide to
ICP, within twenty-four (24) months of the Termination Date,
banner advertisements on a run of AOL Service basis (i.e.,
series of daily servings on the AOL Service) ("Additional
Advertisements") with guaranteed Impressions calculated as
follows: [*] the number of months between the Termination Date
and June 30, 2001 minus [*].
CONFIDENTIAL 13
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
By way of example, if AOL gives notice to ICP on March 31, 2000
that it is terminating this Agreement pursuant to this Section
6.7, the Termination Date shall be September 30, 2000. AOL
would pay ICP the Cash Fee and provide Additional
Advertisements with guaranteed Impressions of 21,750,003. If
AOL gives such notice to ICP on April 15, 2000, the Termination
Date shall be December 31, 2000. AOL would owe ICP the Cash Fee
and Additional Advertisements with guaranteed Impressions of
13,000,002.
The Additional Advertisements (i) shall be used by ICP only to
promote ICP's Memorabilia Products, (ii) shall not be traded,
bartered, sold or otherwise provided by ICP to any third party,
and (iii) shall be subject to the terms of this Agreement
(including without limitation, the terms and conditions related
to banner advertisements provided pursuant to Promotion (3),
the Linked Site Terms (as defined below), all revenue sharing
and reporting obligations and all terms and conditions
contained in Exhibit C related thereto, which terms and
conditions shall survive the termination of this Agreement
until all Additional Advertisements are delivered unless such
provisions survive thereafter pursuant to other provisions of
this Agreement.), AOL's standard advertising and commerce
policies, and AOL's standard insertion order for advertisements
on the AOL Network, including all terms contained and
incorporated therein. Additional Advertisements shall not
promote, link or point to any entity reasonably construed to be
in competition with AOL or promote, link or point to any entity
or area in violation of AOL's exclusivity and other
preferential commitments.
6.7.2 Keyword(TM) Search Terms. In the event AOL terminates this
Agreement pursuant to this Section 6.7, for a period beginning
on the Termination Date and extending through June 30, 2001,
AOL shall provide to ICP the Keyword Search(TM) Terms "Athlete
Direct" and "AD" which shall link to
http://www.athletedirect.com. and "Pro Sports Xchange" and
"College Sports Xchange" which shall link to
http://www.psx.com,subject to all terms and conditions of this
Agreement related to (i) Keyword(TM) Search Terms
(collectively, "Keyword Terms"), and (ii) Linked ICP
Interactive Sites, including without limitation, the Operating
Standards, restrictions on Linked ICP Interactive Site
Advertisements and merchandising, and Content on Linked ICP
Interactive Sites (collectively "Linked Site Terms"). ICP shall
fully perform all of its obligations under the Keyword Terms
and the Linked Site Terms, including without limitation, all
revenue sharing and reporting obligations and all terms and
conditions contained in Exhibit C related thereto, and all such
terms and conditions shall survive the termination of this
Agreement until June 30, 2001 unless such provisions survive
thereafter pursuant to other provisions of this Agreement. ICP
shall have the option, exercisable upon ten (10) days written
notice thereof to AOL, to decline the provision of the
Keyword(TM) Search Terms to be provided pursuant to this
Section 6.7.2, in which case this Section 6.7.2 shall not
continue to apply.
CONFIDENTIAL 14
<PAGE>
7. TERMS AND CONDITIONS. The legal terms and conditions set forth on Exhibit
C attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
AMERICA ONLINE, INC. E-SPORT, INC.
By: /s/ Lynne Crawford By: /s/ Ross Schafelberger
-------------------------------- --------------------------------
Print Name: Lynne Crawford Print Name: Ross Schafelberger
------------------------ ------------------------
Title: VP/CFO, Title: COO
AOL Interactive Services -----------------------------
-----------------------------
Date: Date: 2/18/99
------------------------------ ------------------------------
Tax ID/EIN#: 05-4673805
-----------------------
PRO SPORTS XCHANGE, INC. ATHLETE DIRECT, INC.
By: /s/ Ross Schafelberger By: /s/ Ross Schafelberger
-------------------------------- --------------------------------
Print Name: Ross Schafelberger Print Name: Ross Schafelberger
------------------------ ------------------------
Title: VP, Secretary Title: President
----------------------------- -----------------------------
Date: 2/18/99 Date: 2/18/99
------------------------------ ------------------------------
CONFIDENTIAL 15
<PAGE>
EXHIBIT A
---------
A.1 -- Description of the Online Area/Licensed Content. ICP shall provide the
following to AOL:
A.1.1 Online Area. AOL shall provide ICP with editorial guidelines
("Guidelines") for the Online Area within seventy-five (75) days after the
Effective Date. A sample of such Guidelines is attached to the Agreement as
Exhibit F. For a period of thirty (30) days after the date AOL provides the
Guidelines to ICP, AOL will discuss in good faith any modifications to such
Guidelines proposed by ICP. In providing the Online Area and the Licensed
Content, ICP shall comply with the Guidelines, as may be modified by AOL after
discussions with ICP. The Online Area shall consist of the following online
areas on the AOL Service:
A.1.1.1 Team Online Area. ICP shall program and produce the only
AOL-branded team online area on the AOL Service ("Team
Online Area") where AOL Members can access information
relating to all professional and collegiate sports teams
("collectively, "Teams" and singularly "Team") on a
team-by-team basis in each of the following sports
categories (collectively, "Sports Categories" and
singularly "Sports Category"): [*]. The Team Online
Area shall consist of the following:
(A) Team Pages. ICP shall program and produce the AOL
pages and screens consistent with the following
general descriptions ("Team Pages"): (i) an [*],
(ii) [*] and, Category and, at AOL's election and
subject to AOL's agreement to promote any such
pages and screens, [*] and (iii), [*]. The Team
Pages shall (a) contain the links specified in
Exhibit A.1.1.3 and feature regularly updated
"teaser" Content from the Team Deeper Content and
the Feeds (as defined below). The Team Pages shall
be in Rainman format on the AOL Service unless
otherwise mutually agreed upon by the Parties.
(B) Team Deeper Content. The Team Deeper Content shall
generally consist of the following Content on the
AOL Service: (a) the complete Feeds related to each
Sports Category and each Team, (b) other AOL-
approved Team Content, (c) other AOL-approved
dynamic Content such as weekly chats, updated
player information and multimedia elements, and (d)
additional Team features. The Team Deeper Content
shall be in Rainman format unless otherwise
mutually agreed upon by the Parties. The Parties
acknowledge that, subject to the terms of this
Agreement, including without limitation, Sections
1.3.1 and 2 of this Agreement, ICP intends to
advertise, offer, sell or license Products through
the Team Deeper Content.
CONFIDENTIAL 16
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
(C) Updates. Unless otherwise requested by AOL, ICP
shall update the Team Pages to keep them dynamic
and robust as set forth on the schedule set forth
in Exhibit K.
A.1.1.2 Stars Online Area. ICP shall program and produce the
stars online area ("Stars Online Area"). The Stars
Online Area shall be designed as [*] interactive
and online home for mutually and reasonably agreed-upon
nationally recognized major professional athletes
("Athletes") in the following Sports Categories: [*]
and other mutually agreed upon Sports Categories. The
Stars Online Area shall consist of the following:
(A) Star Pages. ICP shall program and produce for AOL
the following pages and screens on the AOL Service
consistent with the following general descriptions
("Stars Pages"): [*]. The Stars Pages shall contain
the links specified in Exhibit A.1.1.3 and shall
feature regularly updated "teaser" Content from
Deeper Stars Content and the Feeds. The Star Pages
shall be in Rainman format unless otherwise
mutually agreed upon by the Parties.
(B) Deeper Stars Content. The Deeper Stars Content
shall generally consist of (a) individual athlete
online areas ("Athlete Online Areas") produced and
maintained by ICP, (b) other ICP star Content and
additional star features, and (c) other dynamic
Content such as weekly chats, updated player
information and multimedia elements. The Deeper
Stars Content shall be in Rainman format on the AOL
Service or, subject to all provisions of this
Agreement, in HTML format on a Linked ICP
Interactive Site, as elected by ICP after
consultation with AOL.
(C) Athlete Online Areas. ICP shall provide at least
at least [*] Athlete Online Areas upon the
Effective Date, [*] Athlete Online Areas within the
first six (6) months of the Term, [*] Athlete
Online Areas within the first year of the Term, [*]
Athlete Online Areas within the first eighteen (18)
months of the Term and [*] Athlete Online Areas
within the first two (2) years of the Term.
Beginning on the Effective Date, at least [*] of
the Athlete Online Areas shall be for Star Athletes
(as defined in Exhibit B) [*] Sports Categories,
for a total of [*] Star Athletes. The Athlete
Online Areas shall be in Rainman format on the AOL
Service or, subject to all provisions of this
Agreement, in HTML format on a Linked ICP
Interactive Site, as elected by ICP after
consultation with AOL. ICP shall provide to AOL a
list of all Athletes to be included in the Stars
Online Area, which list shall be subject to AOL's
approval pursuant to the terms set forth herein and
in Exhibit G. ICP recognizes and acknowledges the
importance to AOL of certainty and consistency with
respect to the Athlete Online Areas, and AOL
recognizes and acknowledges that ICP may need to
modify the list from time to time. As such, ICP
shall have the right to modify the list from time
to time to delete injured athletes or athletes no
longer under contract with ICP, or to add new
athletes under contract with ICP, or to address
other ICP business requirements; provided that, (a)
ICP shall replace Athletes deleted from
CONFIDENTIAL 17
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
the list with Athletes of equal prominence, and (b)
ICP shall provide AOL seventy-five (75) days prior
written notice of such modifications.
(D) Programming. In addition to the above, the
programming of the Star Online Area, including
without limitation, the Athlete Online Areas, shall
include, at a minimum, those features and areas set
forth in Exhibit G hereto.
(E) Stars Web Area. To the extent the Deeper Stars
Content and/or the Athlete Online Areas are located
on a Linked ICP Interactive Site pursuant to
A.1.1.2 (B) and (C) in accordance with the terms
and conditions of this Agreement (the "Stars Web
Area"), ICP's obligations with respect to the Stars
Web Area viewed by AOL Members shall include all of
ICP's obligations with respect to the Online Area
and the Stars Online Area. The definition of the
"Stars Web Area" shall not include any Content on a
Linked ICP Interactive Site, including athlete
online areas, which are not provided by ICP to AOL
under this Agreement.
A.1.1.3 Look and Feel/Links. The look and feel of the Team Pages
and Stars Pages (collectively, the "AOL Pages" and
singularly, the "AOL Page") and the Team Deeper Content
shall be as determined by AOL after consultation with
ICP. AOL will determine, at its sole discretion, and ICP
will implement (a) the design and navigation of each AOL
Page; (b) the links from each AOL Page to news
schedules, scores and statistics packages provided by
AOL's other partners, and (c) any other links from an
AOL Page. Each AOL Page shall (i) contain at least [*]
AOL-approved ICP-designated links to the relevant Deeper
Content (i.e., Team Pages to Team Deeper Content and
Star Pages to Star Deeper Content) or commerce in
accordance with the provisions of this Agreement,
including without limitation, Sections 1.3.1, 2.2.2 and
2.5, and (ii) feature at least [*] links to AOL-
designated Content or commerce (including, without
limitation, other AOL content and/or commerce partners
and ICP Content and/or commerce at AOL's sole
discretion). AOL's approval for the ICP-designated links
to Team or Star Deeper Content or commerce (other than
the links which are approved pursuant to Section 1.3.1
of this Agreement) shall not be unreasonably withheld;
provided that, (i) such links are to [*] and such linked
Content is editorially relevant to and enhances the
Content contained in the Online Area from which it is
linked, and (ii) [*]. To the extent ICP is permitted to
sell Products through the Online Area in conformance
with Section 2.5 of this Agreement, [*].
A.1.1.4 Fantasy Content. At ICP's expense, including the expense
associated with integrating the following Content into
the AOL Service Sports Channel fantasy area ("Fantasy
Center"), ICP shall provide to AOL, in Rainman format,
the following Content:
(A) Headline Notes. ICP shall provide to AOL Headline
Notes for inclusion in the Fantasy Center news area
as follows : (a) for baseball and football as of
the Effective Date, and (b) for hockey and
basketball as of the next hockey and basketball
season (including, without limitation, the
shortened 1999 NBA basketball season),
respectively, after the Effective Date. During the
baseball and football Seasons, ICP shall provide at
CONFIDENTIAL 18
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
least five daily Headline Notes for each of these
sports. During the hockey and basketball Seasons
and the football and baseball Off-Seasons, ICP
shall provide Headline Notes for each of these
sports on an as-needed basis, but no less often
than once per week or as mutually agreed upon by
the Parties.
(B) Fantasy Articles. Fantasy articles ("Fantasy
Articles") written by Bob Nightengale or Tracy
Ringolsby or by a writer of similar caliber
approved by AOL for baseball, football, hockey and
basketball for inclusion in the Fantasy Center
analysis area as follows: (a) during the baseball
and football Seasons, ICP shall provide at least
one (1) Fantasy Article for each of these sports
per day, (b) during the hockey and basketball
Seasons and the football and baseball Off-Seasons,
ICP shall provide Fantasy Articles for each of
these sports on an as-needed basis, but no less
often than once per week or as mutually agreed upon
by the Parties.
A.1.1.5 Kids Programming and Content. ICP shall program an area
on the AOL Service Kids Only Channel ("ICP Kids Area")
consisting of the Content set forth in Exhibit G,
Paragraph (b) "Kids Channel." The ICP Kids Area shall be
a part of the Online Area. ICP shall comply with AOL's
policies regarding Content targeted to children under
twelve years of age ("AOL Kids Policies").
A.1.2 Talent and Athletes. ICP shall provide at least twenty-five (25)
athletes, including without limitation ten (10) Star Athletes per
year, and other talent for regular chats and live events in the
AOL Sports Live Online Area, based upon a mutually agreed upon
schedule. ICP agrees to work with AOL to create appropriate
promotional plans with respect to such chat and live events. ICP
agrees to use best efforts to give AOL at least twenty-four (24)
hours notice to cancel any scheduled athlete appearance on the
AOL Service.
A.1.3. Feeds. ICP shall provide to AOL the following data feeds as
defined herein (collectively, the "Feeds") via FTP, email or
other AOL-designated method: (i) Pro Sports Xchange Feed ("PSX
Feed"), and (ii) College Sports Xchange Feed ("CSX Feed").
Subject to all terms of this Agreement, including without
limitation Sections 1.3.1 and 2, ICP shall be entitled to promote
and market Premium Information Products through the inclusion of
a promotional link to http://www.psx.com at the end of each story
as mutually agreed upon by the Parties. Other than such
promotion, the Feeds shall contain no advertising, promotion or
merchandising. The Feeds shall consist of in-depth, team-by-team
information in a quality and delivered on a schedule similar to
the Feeds currently being delivered and displayed on the AOL
Service. The Feeds shall comply with the Operating Standards set
forth in Exhibit E-1 to the extent that the Feeds are delivered
via FTP. The Content of the Feeds shall be as currently being
provided as generally set forth in Exhibit H hereto. The Feeds as
described in Exhibit H shall be the best quality feeds for that
specific Content that ICP offers or provides to any third party
(e.g., the PSX NFL Football Team Reports shall be the best such
Content offered or provided by ICP to any third party). The Feeds
shall be one of the top two (2) sports feeds in terms of quality,
breadth and depth. If such Feeds are not one of the top two (2)
sports feeds in terms of quality, breadth and based upon a cross-
section of mutually agreed upon independent third-party reviewers
who are recognized authorities in such industry, without limiting
any right or remedy AOL may have pursuant to this Agreement, AOL
shall have the right to terminate this Agreement upon written
notice thereof to ICP; provided that, ICP shall have sixty (60)
days in which to cure by improving the Feeds so that they are one
of the top two (2) sports feeds as described above.
A.1.4 Supplemental Reports. ICP shall use commercially reasonable
efforts to make the PSX writer network available to AOL for
additional columns and features on a per-assignment basis (the
CONFIDENTIAL 19
<PAGE>
"Supplemental Reports"), the content and nature of which would be
determined at AOL's sole discretion. The cost of the Supplemental
Reports shall be no higher than the lowest commercially
reasonable cost offered to any other third party for
substantially similar columns and features.
A.2 -- Exclusivity Restrictions
The AOL Pages shall be owned by AOL and 100% exclusive to AOL in all media in
perpetuity.
A.3 -- Rights and Licenses in and related to Athlete Online Areas and Columns.
ICP represents and warrants that it shall have all necessary licenses to
distribute each individual Athlete Online Area and the Columns (as defined in
Exhibit H) and to grant AOL and AOL's successors, Affiliates, licensees, and
assigns the licenses set forth in Section 1.2 of the Agreement with respect to
each Athlete Online Area and the Columns.
In addition to, and without limiting the other rights in this Agreement, ICP
represents and warrants that it shall have all necessary licenses to grant to
AOL and AOL's successors, Affiliates, licensees, and assigns, for the Term, the
right to use the name, likeness, image, biography, and voice of the Athletes
through the AOL Network in and in connection with the Online Area and in
advertising and promotion of one or more Athlete Online Areas in any and all
forms of media now known or hereafter devised, including but not limited to the
Internet, broadcast, non-broadcast, pay, cable and network television, satellite
and closed circuit transmission, in-flight video, home entertainment (including
home video, CD-ROM in current and future formats, and online services, both
commercial and non-commercial) linear, digital and interactive formats and
printed transcripts as AOL deems appropriate in its sole discretion. Such
rights shall include [*].
A.4. -- Placements. AOL shall provide to ICP the following Placements subject
to ICP's payment obligations as set forth in Section 1.4 of the
Agreement:
CONFIDENTIAL 20
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
<CAPTION>
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Promotion Screens on the AOL Placements* Annual impressions
Service Commitment**
-----------------------------------------------------------------------------------------------------------------------------------
AOL Sports Category Screens: AOL [*] to the applicable Teams
Sports Pro Football, AOL Sports Aggregate Screen (e.g., AOL Sports
(1) Team Online Area College Football, AOL Sports Pro Pro Football Screen will link to [*]
Basketball, AOL Sports College the NFL Teams Aggregate Screen)
Basketball, AOL Sports Hockey, AOL
Sports Baseball, AOL Sports Soccer
-----------------------------------------------------------------------------------------------------------------------------------
AOL Sports Category Screens: AOL [*] to the applicable Stars
Sports Pro Football, AOL Sports Aggregate Screen (e.g., AOL
(2) Stars Online Area College Football, AOL Sports Pro Sports Pro Football screen will [*]
Basketball, AOL Sports College link to the NFL Stars Aggregate
Basketball, AOL Sports Hockey, AOL Screen)
Sports Soccer, AOL Sports Auto
Racing, AOL Sports Golf
-----------------------------------------------------------------------------------------------------------------------------------
(3) ICP Memorabilia Run of AOL Service Sports Channel Banner Advertisements linking to [*]
Products***** (i.e., series of daily servings on an ICP commerce area for ICP
the AOL Service Sports Channel) Memorabilia Products in an
AOL-approved Linked ICP
Interactive Site subject to the
terms of this Agreement, including
without limitation, Sections 1.3.1
and 2
-----------------------------------------------------------------------------------------------------------------------------------
(4) ICP Memorabilia Any screen in AOL Sports Channel [*] to an ICP commerce area for [*]
Products chosen by AOL in AOL's sole ICP Memorabilia Products in an
discretion AOL-approved Linked ICP
Interactive Site subject to the
terms of this Agreement, including
without limitation, Sections 1.3.1
and 2
-----------------------------------------------------------------------------------------------------------------------------------
CONFIDENTIAL 21
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
-----------------------------------------------------------------------------------------------------------------------------------
(5) ICP Kids Area AOL Kids Only Channel "News and [*]
Sports" Screen
-----------------------------------------------------------------------------------------------------------------------------------
(6) Online Area AOL Sports Fan Central (or any [*] to an AOL-selected page of [*]
successor thereto) the Online Area
-----------------------------------------------------------------------------------------------------------------------------------
(7) Premium Information AOL Sports Center Fantasy screen [*] to an ICP commerce area for [*]
Products**** containing Headline Notes ICP Premium Information Products
in an AOL-approved Linked ICP
Interactive Site subject to the
terms of this Agreement, including
without limitation Sections 1.3.1
and 2.
-----------------------------------------------------------------------------------------------------------------------------------
(8) Premium Information Fantasy Articles (not screens) [*] at bottom of Fantasy Articles [*]
Products **** to an ICP commerce area for ICP
Premium Information Products in
an AOL-approved Linked ICP
Interactive Site subject to the
terms of this Agreement, including
without limitation Sections 1.3.1
and 2 sold
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(9) Teams Online Area Main Screen of AOL Sports [*] [*]
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* the exact form, placement, size and nature of all placements, including [*],
banner advertisements and [*] (as defined below), shall be determined by AOL in
its reasonable editorial discretion.
CONFIDENTIAL 22
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
** Both parties understand that, there is [*] above. AOL shall deliver
the Annual Impressions Commitment for Promotions (3) and (4) on the AOL Service
Sports Channel and for Promotion (5) from anywhere on the AOL Network as
provided below; provided that, in the last six months of the Initial Term, AOL
shall deliver half of each Annual Impressions Commitment. In the event that the
sum of all Annual Impressions Commitments ("Total Impressions Commitment") is
not met (or will not, in AOL's reasonable judgment, be met) during the Term, at
AOL's option either (a) AOL may provide the remaining Impressions to ICP for up
to six (6) months without additional carriage fees payable by ICP until the
Total Impressions Commitment is met, (b) AOL may, from time to time, provide ICP
with the remaining Impressions in the form of advertising space within the AOL
Network of comparable value to the undelivered Impressions (as reasonably
determined by AOL), or (c) some combination thereof. If ICP does not meet the
Guidelines, including without limitation, providing daily dynamic updates as set
forth in Exhibit K within the first year of the Term, then in addition to any
other rights or remedies AOL may have under this Agreement, AOL shall not be
obligated to provide the Annual Impressions Commitments or the Placements
related to Promotions [*], ICP shall not be entitled to a refund or reduction of
any of the amounts set forth in Section 1.5 of this Agreement, and AOL shall
have the right to engage a third party to provide such daily dynamic updates. In
the event AOL notifies ICP in writing that ICP has failed to follow the
Editorial Guidelines, the Operating Standards or the requirements of any other
Exhibit to this Agreement, including without limitation, providing the Content
specified therein, [*].
*** Provided ICP is in full compliance with the terms of this Agreement,
beginning on the launch date of the [*], AOL shall (a) [*] on the AOL Service
Kids Only Channel "News and Sports" Screen (or any specific successor thereof)
which [*] shall link to the ICP Kids Area. AOL shall provide ICP with the Annual
Impressions Commitment for Promotion (5) as provided above from ICP's Presence
on the AOL Network. For the purposes of this Agreement, an "ICP's Presence" on
an AOL screen shall mean a presence comprised of the following (other than from
Promotions (1), (2), (3) (4) (6) (7) (8) and (9)): (i) any ICP trademark or
logo, (ii) any headline or picture from ICP content, (iii) any teaser, icon,
link to the ICP Kids Area, and (iv) any other Content which originates from,
describes or promotes ICP or ICP's Content; provided that, only screens that
contain a link to the ICP Kids Area will count against the Annual Impressions
Commitment for Promotion (5). AOL shall have no obligation to provide Promotion
(5) if ICP does not perform its obligations pursuant to Exhibit.A.1.1.5. If AOL
does not provide Promotion (5), there shall be no refund or reduction of the
payments due to AOL pursuant to Section 1.5 of this Agreement.
**** AOL shall have no obligation to provide Promotion (7) if ICP does not
perform its obligations pursuant to Exhibit A.1.1.4. AOL shall have no
obligation to provide Promotion (8) if ICP does not perform its obligations
pursuant to Exhibit A.1.1.4. If AOL does not provide Promotions (7) and/or
(8), there shall be no refund or reduction of the payments due to AOL pursuant
to Section 1.5 this Agreement.
***** All banner advertisements shall be for purposes of promoting ICP's
Memorabilia Products, subject to the terms of this Agreement, AOL's standard
advertising and commerce policies, and AOL's standard insertion order for
advertisements on the AOL Network, including all terms contained and
incorporated therein.
A.5. -- Keywords. Subject to the terms of this Agreement, AOL shall provide to
ICP the following Keyword Search Term : "Athlete Direct". AOL shall also
initially provide ICP with the Keyword Search Term "AD" subject to AOL's right
to revoke such Keyword Search Term at any time. In addition, subject to the
terms of this
CONFIDENTIAL 23
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
Agreement, AOL shall provide AOL Keyword Search Terms for all professional teams
and AOL-approved athletes covered in the Online Area so long as ICP promotes
such Keyword Search Terms and the relevant Online Area (i.e., the Teams Online
Area for Team Keyword Search Terms and the Stars Online Area for Athlete Keyword
Search Terms) as set forth in Section 4. All Athlete Keyword Search Terms shall
link to the main Rainman page of the Athlete Online Area on the AOL Service.
A.6 -- Local and International Team and Star Content [*]. Prior to entering into
any arrangement with any [*].
CONFIDENTIAL 24
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
EXHIBIT B
---------
DEFINITIONS. The following definitions shall apply to this Agreement:
Advertisement. Any button, banner, promotion, advertisement, link, pointer,
sponsorships or similar service or right.
Advertising Revenues. Aggregate amounts collected by ICP, AOL or either Party's
agents, as the case may be, arising from the license or sale of AOL
Advertisements.
Affiliate. Any agent, distributor or franchisee of AOL, or an entity in which
AOL holds at least a nineteen percent (19%) equity interest.
AOL Advertisements. Any promotion, advertisement, link, pointer, sponsorships
or similar service or right on or through the Online Area and the Stars Web
Area.
AOL Look and Feel. The distinctive and particular elements of graphics, design,
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) which are
associated with online areas within the AOL Network and the total appearance and
impression substantially formed by the combination, coordination and interaction
of these elements.
AOL Member(s). Authorized users of the AOL Network, including any sub-accounts
using the AOL Network under an authorized master account.
AOL Purchaser. (i) AOL Members generating Transaction Revenues in the Online
Area, (ii) any person or entity who enters the Linked ICP Interactive Site
(including without limitation the Stars Web Area) 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 Linked ICP Interactive Site which includes a domain other than an
"AOL.com" domain); and (iii) any other person or entity who, when purchasing a
product, good or service through a Linked ICP Interactive Site (including
without limitation, the Stars Web Area), provides an AOL.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).
AOL Service. The narrow-band U.S. version of the America Online brand service,
specifically excluding (a) AOL.com or any other AOL Interactive Site, (b) the
international versions of an America Online service (e.g., AOL Japan), (c) the
CompuServe(R) brand service and any other CompuServe products or services, (d)
"ICQ," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital City(TM)",
"NetMail" , "Real Fans", Love@AOL, "Entertainment Asylum," "Hometown AOL" or any
similar independent product or service which may be offered by, through or with
the U.S. version of the America Online brand service, (e) any programming or
content area offered by or through the U.S. version of the America Online 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), (f) 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 brand service, (g) any property, feature,
product or service which AOL or its Affiliates may acquire subsequent to the
Effective Date and (h) any other version of an America Online service which is
materially different from the narrow-band U.S. version of the America Online
brand service, by virtue of its branding, distribution, functionality, Content
and services, including, without limitation, any co-branded version of the
service and any version distributed through any broadband distribution platform
or through any platform or device other than a desktop personal computer.
AOL Network. (i) The AOL Service and (ii) any other product or service owned,
operated, distributed or authorized to be distributed by or through AOL or its
Affiliates worldwide through which such party elects to offer the Licensed
Content (which may include, without limitation, AOL-related Internet sites,
"offline" information browsing products, international versions of the AOL brand
service, and CompuServe).
Athlete Online Area. The area within the Stars Online Area which is designated
as pertaining to an individual Athlete as determined and programmed by ICP.
Change of Control. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
ICP; 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 1933,
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 ICP; or (ii) the combined voting power of the then
outstanding voting securities of ICP entitled to vote generally in the election
of directors.
Confidential Information. Any information relating to or disclosed in the
course of negotiating and implementing the Agreement, which is, or should be
reasonably understood to be, confidential or proprietary to the disclosing
Party, including, but not limited to, the content of negotiations between the
Parties, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data. "Confidential Information" shall not include information
(a) already lawfully known to or independently developed by the receiving Party,
(b) disclosed in published materials, (c) generally known to the public, (d)
lawfully obtained from any third party or (e) required or reasonably advised to
be disclosed by law.
Content. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, pointers, technology and software.
Deeper Content. Collectively, Team Deeper Content and Deeper Stars Content.
CONFIDENTIAL 25
<PAGE>
Headline Notes. Player-specific editorial notes, approximately 25-50 words in
length, which cover the latest news most important to fantasy players, in ICP's
reasonable judgment, on a given day.
ICP Interactive Site. Any interactive site or area (other than the Online Area)
which is managed, maintained or owned by ICP or its agents or to which ICP
provides and/or licenses Content , including, by way of example and without
limitation, (i) an ICP site on the World Wide Web portion of the Internet or
(ii) a channel or area delivered through a "push" product such as the Pointcast
Network or interactive environment such as Microsoft's proposed "Active
Desktop."
Impression. User exposure to (i) a page containing a Placement and, in the case
of the Anchor Tenant Button, an ICP Presence or the Anchor Tenant Button, or
(ii) a page of the ICP Kids Area or an ICP Interactive Site, as the context may
require, as such exposure may be reasonably determined and measured by the
reporting Party in accordance with its standard methodologies and protocols
Interactive Service. An entity offering one or more of the following: (i)
online or Internet connectivity services (e.g., an 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 numerous interactive commerce categories (e.g., an online
mall or other leading online commerce site); and (iii) communications software
capable of serving as the principal means through which a user creates, sends
and receives electronic mail or real time online messages.
Keyword Search Terms. The Keyword online search terms made available on the AOL
Service for use by AOL Members, 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).
Launch Date. The earliest date upon which the Online Area is made available
through the AOL Network.
Licensed Content. All Content provided by ICP or its agents to AOL or its
Affiliates for distribution through the AOL Network in connection with the
subject matter of this Agreement, including without limitation, the Teams
Content, the Stars Content, and the Feeds.
Linked Interactive Site. Any site or area outside of the AOL Service which is
linked to the Online Area (through a "pointer" or similar link) in accordance
with the terms and conditions of this Agreement.
Linked ICP Interactive Site. Any ICP Interactive Site which is also a Linked
Interactive Site.
Memorabilia Products. Products consisting of (i) Authentically autographed
(e.g., autograph not provided by machine or facsimile) sports products deriving
a portion of their value from the autograph, and (ii) commemorative, unique or
limited sports products related to a sport, sporting event, league, team,
players association or athlete.
New Member. Any person or entity (a) who registers for the AOL Network using
ICP's special promotion identifier and (b) who remains an AOL Member for two
paid billing cycles.
Notebook. An ICP standard product called the "Notebook."
Off Season. The period of the year which does not comprise the Season.
Online Area. The specific area within the AOL Network, as described in Exhibit
A, which shall be developed, managed or marketed by ICP pursuant to this
Agreement, including but not limited to the Licensed Content, message boards,
chat and other AOL Member-supplied content areas contained therein (but
excluding any Linked Interactive Sites other than sites which are exclusively
available to AOL Members).
Other Screens. All pages of the Online Area directly linked to from a Top Level
Screen.
Post-Season. Period of the Season which is comprised of playoff games after the
regular season.
Premium Information Products. Specialized electronic sports information
Products offered, licensed or sold for an amount charged by ICP to AOL
Purchasers in addition to the base membership fee charged by AOL to AOL Members.
Premium Information Products may include, but shall not be limited to,
electronically distributed informational items such as special event products
(e.g., special Super Bowl reports), special fantasy reports, team fan clubs,
seasonal specials, which Products shall be created and marketed to specialized
audiences subject to the restrictions, terms and conditions contained in this
Agreement. ICP shall be solely responsible for the Content of the Premium
Information Products. ICP hereby acknowledges that the Feeds, or any information
contained therein, shall not be considered a Premium Product.
Products. Any product, good or service which ICP offers, sells or licenses to
AOL Members and/or AOL Purchasers through (i) the Online Area, (ii) any Linked
ICP Interactive Site or (iii) an "offline" means (e.g., toll-free number) for
receiving orders related to specific offers within the Online Area requiring
purchasers to reference a specific promotional identifier or tracking code,
including, without limitation, products sold through surcharged downloads (to
the extent permitted hereunder).
Prohibited Party. (i) Any online service (e.g. Microsoft Network, AT&T WorldNet
and Prodigy Services Company), (ii) any Internet service provider, (iii) any
portal accessed by more than 1,000,000 Collective Users per month (e.g. Yahoo!
Inc., Infoseek, SNAP, Lycos and Excite), (iv) any party or entity who owns,
operates, manages or offers a commerce area marketing a broad selection of
products and/or services across numerous interactive commerce categories and
accessed by more than 1,000,000 Collective Users per month (e.g., online malls,
Amazon.com), or (v) any party offering, or having the technology to offer, cable
internet access services (e.g. @Home), email or instant messaging. As used
herein, "Collective Users" shall mean the aggregate number of users on all of a
party's web-based properties and interactive sites.
Season or In-Season. The regular season and the post-season playoffs in any
given Sports Category.
CONFIDENTIAL 26
<PAGE>
Sports Entertainment Products. Audio-based and or video-based sports-related
content offerings, (i.e., chats, broadcasts, interviews or shows) which feature
athletes, sports writers or other sports personalities.
Star Athlete. An Athlete who has been (a) selected as an All-Star/All-Pro or
similar recognition, (b) ranked as one of the top fifty Q-rated athletes, or (c)
paid among the top fifty athletes in endorsement income or salary, in each case
as it relates to his or her respective league or sport in the previous three-
year period, or an Athlete who was drafted in the first round of his or her
respective professional league, or any other Athlete mutually agreed upon by the
Parties.
Stars Content. Content provided by ICP at the Stars Online Area.
Teams Content. Content provided by ICP at the Teams Online Area.
Term. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of the Agreement.
Top Level Screens. The AOL Pages and any other page of the Online Area linked
to directly from an AOL-based permanent promotion and/or used as a navigational
page.
Transaction Revenues. For Premium Information Products and Sports Entertainment
Products, aggregate amounts paid by AOL Purchasers in connection with the sale,
licensing, distribution or provision of 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. For all other Products, including without limitation,
Memorabilia Products, aggregate amounts received by ICP from the sale,
licensing, distribution or provision of any Products less amounts paid to third
parties for the development, manufacture (or the cost of goods sold when ICP
manufactures the Products), distribution and sale of Products, selling expenses,
order processing expenses, returns, taxes and other fees incurred in connection
with the sale, licensing, distribution or provision of the Products. In either
case, Transaction Revenues shall not include amounts received by ICP from the
sale, licensing, distribution or provision of any Products on a Linked ICP
Interactive Site to certain AOL Purchasers ("Excluded AOL Purchasers") if, and
only if (a) such AOL Purchaser did not access such Linked ICP Interactive Site
through the AOL Network but through a link from a third party site not on the
AOL Network, and (b) ICP has a Commercial Relationship with such third party
("ICP Marketing Partner"). As used herein, "Commercial Relationship" shall mean
a written agreement establishing a paid or significant barter marketing
relationship between ICP and the ICP Marketing Partner pursuant to which ICP
must pay or provide significant barter consideration (i.e., of a fair market
value at least equal to five percent (5%) of Transaction Revenues generated by
Excluded AOL Purchasers) to the ICP Marketing Partner.
Two Clicks. Two clicks from a given page shall mean (i) any page directly
linked to such page ("Directly Linked Page"), including without limitation, any
pop-ups or other Content viewed from a Directly Linked Page, and (ii) any page
directly linked to a Directly Linked Page ("Indirectly Linked Page") and any
pop-ups or other Content viewed from an Indirectly Linked Page.
CONFIDENTIAL 27
<PAGE>
EXHIBIT C
---------
I. ONLINE AREA
AOL Terms of Service; Unspecified Content. AOL shall have the right to remove,
or direct ICP to remove any Content from the Online Area which, as reasonably
determined by AOL: (i) violates AOL's then-standard Terms of Service (as set
forth on the America Online brand service), the terms of this Agreement or any
other standard, written AOL policy; or (ii) is not specifically described on
Exhibit A. To the extent ICP wishes to implement any rules of conduct or terms
of service related to the Online Area which are separate from or supplementary
to AOL's Terms of Service, ICP must obtain the prior written approval of the AOL
Legal Department.
Changes to AOL Service. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of the
AOL Service. If AOL eliminates or modifies the screen(s) specified in Exhibit A
in a manner that substantially modifies the nature of the placements for ICP
described in Exhibit A in a material adverse fashion, AOL will work with ICP in
good faith to provide ICP with a comparable package of placements which are
reasonably satisfactory to ICP.
Contests. ICP shall take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted or promoted through the Online Area
(a "Contest") complies with all applicable federal, state and local laws and
regulations. ICP shall provide AOL with (i) at least thirty (30) days prior
written notice of any Contest and (ii) upon AOL's request, an opinion from ICP's
counsel confirming that the Contest complies with all applicable federal, state
and local laws and regulations.
AOL Look and Feel. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the Licensed Content (the "AOL Frames"). AOL may, at its discretion,
incorporate navigational icons, links and pointers or other Content into such
AOL Frames.
Management. ICP shall review, delete, edit, create, update and otherwise manage
all Content available on or through the Online Area, including but not limited
to the Licensed Content and message boards, in a timely and professional manner
and in accordance with the terms of this Agreement, AOL's then-standard Terms of
Service and any generally applicable guidelines and service standards for
interactive content providers published by AOL. In managing the Online Area,
ICP agrees to refrain from editing or altering any opinion expressed by an AOL
Member within the Online Area, except in cases when ICP (i) has a good faith
belief that the Content in question violates an applicable law, regulation,
third party right or portion of AOL's Terms of Service or (ii) obtains AOL's
prior approval. ICP shall ensure that the Online Area is reasonably current and
well-organized, and shall employ all necessary procedures to insure the accuracy
of the Licensed Content. ICP warrants that the Online Area, the Licensed
Content, and any Linked ICP Interactive Sites: (i) will conform to AOL's
applicable Terms of Service; (ii) will not infringe on or violate any copyright,
trademark, U.S. patent or any other third party right, including without
limitation, any music performance or other music related rights; and (iii) will
not contain any Content which violates any applicable law or regulation. AOL
shall have no obligations with respect to the Content available on or through
the Online Area, including, but not limited to, any duty to review or monitor
any such Content.
Operations. AOL shall be entitled to require reasonable changes to Licensed
Content to the extent such Licensed Content will, in AOL's good faith judgment,
adversely affect technical operations of the AOL Network.
Duty to Inform. ICP shall promptly inform AOL of any information related to the
Licensed Content which could reasonably lead to a claim, demand or liability of
or against AOL and/or its Affiliates by any third party.
Response to Questions/Comments; Customer Service. ICP shall respond promptly
and professionally to questions, comments, complaints and other reasonable
requests regarding the Licensed Content by AOL Members or on request by AOL, and
shall cooperate and assist AOL in promptly answering the same.
Classifieds. To the extent ICP desires to implement any classifieds listing
features through the Online Area, ICP shall obtain AOL's prior written approval.
Such approval may be conditioned upon, among other things, ICP's conformance
with any then-applicable service-wide technical or other standards related to
online classifieds.
Message Boards. Any Content submitted by ICP or its agents within message
boards or any comparable vehicles will be subject to the license grant relating
to submissions to "public areas" set forth in the Proprietary Rights section of
the Terms of Service. ICP acknowledges that it has no rights or interest in AOL
Member submissions to message boards within the Online Area.
Statements Through AOL Network. ICP shall not make, publish, or otherwise
communicate through the AOL Network any deleterious remarks concerning AOL or it
Affiliates, directors, officers, employees, or agents (including, without
limitation, AOL's business projects, business capabilities, performance of
duties and services, or financial position) which remarks are based on the
relationship established by this Agreement or information exchanged hereunder.
This section is not intended to limit good faith editorial statements made by
ICP based upon publicly available information, or information developed by ICP
independent of its relationship with AOL and its employees and agents.
Accounts. ICP shall be granted two (2) accounts per athlete, plus twenty (20)
additional accounts for production purposes, for the exclusive purpose of
enabling ICP and its agents to perform ICP's duties hereunder. The accounts
shall be of the type determined by AOL to be necessary for ICP to perform its
duties hereunder. The twenty (20) accounts granted for production purposes
shall be free of charge, but the two (2) accounts per athlete shall be subject
to such monthly subscription charges as AOL shall determine shall be applied to
similarly-situated interactive service providers (not to exceed monthly
subscription charges generally available to the public for a similar type of
account). In any event, ICP shall be responsible for the actions taken under
or through its accounts, which actions are subject to AOL's then-standard Terms
of Service, and for any surcharges, including, without limitation, all premium
charges, transaction charges and any applicable communication charges incurred
by any such account. Upon the termination of
CONFIDENTIAL
<PAGE>
this Agreement, all accounts, related screen names and any associated usage
credits or similar rights shall automatically terminate. AOL shall have no
liability for loss of any data or content related to the proper termination of
any account.
Keyword. Any Keyword Search Terms granted to ICP hereunder shall be (i)
subject to availability for use by ICP (other than Keyword Search Terms "Athlete
Direct" and "AD") and (ii) limited to the combination of the Keyword 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, including without limitation, the
Keyword Search Term "AD". 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. This Section
shall survive the completion, expiration, termination or cancellation of this
Agreement.
Launch Date. In the event that any terms contained herein relate to or depend
on the launch date of the online area or other property contemplated by this
Agreement, 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.
II. TRADEMARKS
Trademark License. In designing and implementing the Promotional Materials and
subject to the other provisions contained herein, ICP shall be entitled to use
the following trade names, trademarks and service marks of AOL: the "America
Online" brand service, "AOL" service/software and AOL's triangle logo; and AOL
and its Affiliates shall be entitled to use the trade names, trademarks and
service marks of ICP associated with the Online Area (collectively, together
with the AOL marks listed above, the "Marks"); provided that each Party: (i)
does not create a unitary composite 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.
Rights. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
Quality Standards. Each Party agrees that the nature and quality of its
products and services supplied in connection with the other Party's Marks shall
conform to quality standards communicated in writing by the other Party for use
of its trademarks. Each Party agrees to supply the other Party, upon request,
with a reasonable number of samples of any Materials publicly disseminated by
such Party which utilize the other Party's Marks. Each Party shall comply with
all applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
Promotional Materials/Press Releases. Each Party will submit to the other
Party, for its prior written approval, which shall not be unreasonably withheld
or delayed, any marketing, advertising, press releases or other promotional
materials related to the Online Area and/or referencing the other Party and/or
its trade names, trademarks and service marks (the "Promotional Materials");
provided, however, that, following the initial public announcement of the
business relationship between the Parties in accordance with the approval and
other requirements contained herein, either Party's subsequent factual reference
to the existence of a business relationship between AOL and ICP, including,
without limitation, the availability of the Online Area on the AOL Network, or
use of screen shots of the Online Area (so long as the AOL Network is clearly
identified as the source of such screen shots) for promotional purposes shall
not require the approval of the other Party. Once approved, the Promotional
Materials may be used by a Party and its affiliates for the purpose of promoting
the Online Area and the content contained therein and reused for such purpose
until such approval is withdrawn with reasonable prior notice. In the event
such approval is withdrawn, existing inventories of Promotional Materials may be
depleted.
Infringement Proceedings. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; (iv) such Party's
Promotional Materials will neither infringe on any copyright, U.S. patent or any
other third party right nor violate any applicable law or regulation and (v)
such Party acknowledges that the other Party makes no representations,
warranties or agreements related to the subject matter hereof which are not
expressly provided for in this Agreement. E-Sport, PSX and Athlete Direct shall
be jointly and severally liable for any breach of ICP's obligations hereunder.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement, to prevent the disclosure of Confidential Information of the other
Party, other than to its employees, or its other agents who must have access to
such Confidential Information for such Party to perform its obligations
hereunder, who will each agree
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to comply with this section. Notwithstanding the foregoing, either Party may
issue a press release or other disclosure containing Confidential Information
without the consent of the other Party, to the extent such disclosure is
required by law, rule, regulation or government or court order. In such event,
the disclosing Party will provide at least five (5) business days prior written
notice of such proposed disclosure to the other Party. Further, in the event
such disclosure is required of either Party under the laws, rules or regulations
of the Securities and Exchange Commission or any other applicable governing
body, such Party will (i) redact mutually agreed-upon portions of this Agreement
to the fullest extent permitted under applicable laws, rules and regulations and
(ii) submit a request to such governing body that such portions and other
provisions of this Agreement receive confidential treatment under the laws,
rules and regulations of the Securities and Exchange Commission or otherwise be
held in the strictest confidence to the fullest extent permitted under the laws,
rules or regulations of any other applicable governing body.
V. MEMBER INFORMATION/SOLICITATION
(a) During the term of the 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") 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 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 being sent to that AOL
Member by ICP or its agents. Any commercial e-mail to be sent through or into
AOL's products or services 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 ICP's Linked Interactive 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.
(c) Any e-mail newsletters sent to AOL Members by ICP or its agents shall (i)
be subject to AOL's policies on use of the e-mail functionality, including but
not limited to AOL's policy on unsolicited bulk e-mail, (ii) be sent only to AOL
Members requesting to receive such newsletters, (iii) not contain Content which
violates AOL's Terms of Service, and (iv) not contain any advertisements,
marketing or promotion for any other Interactive Service.
(d) To the extent ICP is otherwise permitted to send communications to AOL
Members (in accordance with the other requirements contained herein): (i) any
solicitations in such communications to purchase products or services shall
promote the Online Area as the principal means through which to purchase any
such products or services; (ii) any direct links to specific offers within such
communications shall link to the Online Area or to AOL-approved Linked ICP
Interactive Sites where Products are sold and are subject to the revenue sharing
set forth in Section 2.5 of the Agreement; (iii) any sales arising from such
communications shall be subject to any revenue sharing provisions which may be
contained herein; and (iv) ICP shall limit the subject matter of such
communications to those categories of products, services and/or content which
are specifically contemplated by this Agreement.
VI. TREATMENT OF CLAIMS
Liability. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY" SECTION, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE OF OR
INABILITY TO USE THE AOL NETWORK OR ONLINE AREA OR ANY OTHER PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY" SECTION, AOL
SHALL NOT BE LIABLE TO ICP FOR MORE THAN THE AGGREGATE AMOUNTS PAYABLE BY AOL
HEREUNDER AS OF THE DATE LIABILITY ACCRUED. EXCEPT AS PROVIDED BELOW IN THE
"INDEMNITY" SECTION, ICP SHALL NOT BE LIABLE TO AOL FOR MORE THAN THE AGGREGATE
AMOUNTS PAYABLE BY ICP HEREUNDER AS OF THE DATE LIABILITY ACCRUED.
No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK,
THE ONLINE AREA OR ANY AOL PUBLISHING TOOLS, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
THE PROFITABILITY OF THE ONLINE AREA.
Indemnity. Either Party will defend, indemnify, save and hold harmless the
other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims, demands, liabilities, costs or expenses, including reasonable attorneys'
fees ("Liabilities"), resulting from the indemnifying Party's material breach of
any duty, representation, or warranty of this Agreement.
If a Party entitled to indemnification hereunder (the "Indemnified Party")
becomes aware of any matter it believes is indemnifiable hereunder involving any
claim, action, suit, investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "Action"), the Indemnified Party
shall give the other Party (the "Indemnifying Party") prompt written notice of
such Action. Such notice shall (i) provide the basis on which indemnification
is being asserted and (ii)
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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. MISCELLANEOUS
Auditing Rights. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each Party shall have the right, at its expense,
to direct an independent certified public accounting firm subject to strict
confidentiality restrictions to conduct a reasonable and necessary copying and
inspection of portions of the Records of the other Party which are directly
related to amounts payable to the Party requesting the audit pursuant to this
Agreement. Any such audit may be conducted after twenty (20) business days
prior written notice, subject to the following. Such audits shall not be made
more frequently than once every twelve months. No such audit of AOL shall occur
during the period beginning on June 1 and ending October 1. In lieu of
providing access to its Records as described above, a Party shall be entitled to
provide the other Party with a report from an independent certified public
accounting firm confirming the information to be derived from such Records.
Excuse. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname
"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, such notice will be provided to both the President and the Vice
President of Business and Legal Affairs (both at fax no. 310.996.1092), each at
the address of ICP set forth in the first paragraph of this Agreement.
No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
Return of Information. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all Confidential Information,
documents, manuals and other materials specified the other Party.
Survival. Sections 1.2.3 ,1.3.2, 6.7.1 and 6.7.2 of this Agreement, and
Sections IV, V, VI, and VII of this Exhibit C, shall survive the completion,
expiration, termination or cancellation of this Agreement. Additional sections
shall survive as set forth in Section 6.7.1 and 6.7.2.
Entire Agreement. Except as set forth in Section 6.1, 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.
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Amendment. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
Further Assurances. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
Assignment. ICP shall not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL.
Assumption of this Agreement by any successor to ICP (including, 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 consent.
Subject to the foregoing, this Agreement shall be fully binding upon, inure to
the benefit of and be enforceable by the Parties hereto and their respective
successors and assigns.
Construction; Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
Remedies. Except where otherwise specified, the rights and remedies granted to
a Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
Applicable Law. This Agreement shall be interpreted, construed and enforced in
all respects in accordance with the laws of the Commonwealth of Virginia except
for its conflicts of laws principles. Each Party irrevocably consents to the
jurisdiction of the federal and state courts in the Commonwealth of Virginia and
the State of California. In addition, any action to enforce the provisions of
this Agreement, to recover damages or other relief for breach or default (i)
initiated by ICP against AOL shall be brought in the Commonwealth of Virginia,
and (ii) initiated by AOL against ICP shall be brought in the State of
California.
Export Controls. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or re-
export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
Headings. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
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EXHIBIT D
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS AND EXCLUSIVITY
Pursuant to Section 4 of the Interactive Services Agreement between E-Sport,
Inc., Athlete Direct, Inc. and Pro Sports Xchange, Inc. (collectively, "ICP")
and America Online, Inc. ("AOL"), dated as of January 1, 1999 (the "Agreement"),
the following report is delivered to AOL for the month ending __________ (the
"Month"):
I. Promotional Commitments
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Month:
Type of Date(s) of Duration/Circulation Relevant
Promotion Promotion of Promotion Contract
Section
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------
II. Exclusivity Commitments
ICP hereby certifies to AOL that ICP was in full compliance with the exclusivity
restrictions (if applicable) specified in Exhibit A of the Agreement throughout
the Month.
IN WITNESS WHEREOF, this Certificate has been executed this ________ day of
__________________, 199__.
___________________________________
By: _______________________________
Print Name: ______________________
Title: ____________________________
Date: _____________________________
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Exhibit E-1
Operating Standards for Feeds
-----------------------------
1. ICP Site Infrastructure. ICP will be responsible for all communications,
hosting and connectivity costs and expenses associated with the distribution of
data. ICP will provide all hardware, software, telecommunications lines and
other infrastructure necessary to meet any traffic demands.
2. Service Level Response. ICP agrees to use commercially reasonable efforts
to address material technical problems (over which ICP exercises control)
affecting AOL Members (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 hereunder until such time as ICP corrects
the ICP Technical Problem at issue.
3. Monitoring. ICP will ensure that the performance and availability of the
FTP mechanism is monitored on a continuous 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 FTP system.
4. Security. ICP will facilitate periodic reviews of the FTP system by AOL in
order to evaluate the security risks of such system. ICP will promptly remedy
any security risks or breaches of security as may be identified by AOL's
Operations Security team.
5. AOL Internet Services ICP 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 ICPs. AOL support will not, in any
case, be involved with content creation on behalf of ICP or support for any
technologies, databases, software or other applications which are not supported
by AOL or are related to any ICP area other than the files received via FTP.
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EXHIBIT E-2
OPERATING STANDARDS FOR LINKED ICP INTERACTIVE SITES
----------------------------------------------------
1. Customization. ICP shall customize each Linked ICP Interactive Site for
AOL Members as follows:
(a) upon AOL's request, create a customized, co-branded home page "welcome
mat" for the AOL audience for each area on the Linked ICP Interactive Site
linked to from the AOL Network on a continuous basis (each a "Welcome
Mat"), which Welcome Mat(s) shall be subject to AOL approval;
(b) ensure that AOL Members linking to the Linked ICP Interactive Site do
not receive advertisements, promotions or links for any entity reasonably
construed to be in competition with AOL or otherwise in violation of AOL's
then-standard advertising policies or exclusivity or premier commitments to
third parties as provided in Section 2.2.2 of the Agreement; and
(c) provide continuous navigational ability for AOL Members to return to
an agreed-upon point on the AOL service (for which AOL shall supply the
proper address) from Linked ICP Interactive Site (e.g., the point on the
AOL service from which the Linked ICP Interactive Site is linked), which,
at AOL's option, may be satisfied through the use of a hybrid browser
format.
2. Links on Linked ICP Interactive Site. The Parties will work together on
mutually acceptable links (including links back to AOL) within the Linked
ICP Interactive Site in order to create a robust and engaging AOL member
experience. ICP shall use commercially reasonable efforts to ensure that
AOL traffic is generally either kept within a Linked ICP Interactive Site
or channeled back into the AOL Network. To the extent that AOL notifies ICP
in writing that, in AOL's reasonable judgment, links from the Linked ICP
Interactive Site cause an excessive amount of AOL traffic to be diverted
outside of such site and the AOL Network in a manner that has a detrimental
effect on the traffic flow of the AOL audience, then ICP shall immediately
reduce the number of links out of such site(s). In the event that ICP
cannot or does not so limit diverted traffic from the Linked ICP
Interactive Site, AOL reserves the right to terminate the links from the
AOL Network to the Linked ICP Interactive Site at issue if such failure
remains uncured after thirty (30) days written notice thereof, and ICP
shall only be responsible to pay a pro rata share of the carriage fees
otherwise owed by ICP hereunder for the period for which the links are in
place.
3. Hosting; Capacity. ICP will provide all computer hardware (e.g., servers,
routers, network devices, switches and associated hardware) in an amount
necessary to meet anticipated traffic demands, adequate power supply
(including generator back-up) and HVAC, adequate insurance, adequate
service contracts and all necessary equipment racks, floor space, network
cabling and power distribution to support the Linked ICP Interactive Site.
ICP is fully responsible for the maintenance and the day-to-day operation
of the Linked ICP Interactive Site. ICP will provide AOL with a detailed
Network diagram. In addition, ICP will provide AOL with detailed
information regarding separate file downloads available from the Linked ICP
Interactive Site, including file size, type and download/installation
procedures.
4. Speed; Accessibility. ICP will ensure that the performance and
availability of the Linked ICP Interactive Site (a) is monitored on a
continuous, 24/7 basis and (b) remains reasonably competitive in all
material respects with the performance and availability of other similar
sites based on similar form technology. ICP will use commercially
reasonable efforts to ensure that: (a) the functionality and features
within the Linked ICP Interactive Site are optimized for the client
software then in use by AOL Members; and (b) the Linked ICP Interactive
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
Linked ICP Interactive Site's data transfer initiates within fewer than
fifteen (15) seconds on average. Prior to launch of any promotions
described herein, ICP will permit AOL to conduct performance and/or load
testing of the Linked ICP Interactive Site (in person or through remote
communications) until AOL is reasonably satisfied that launch can occur, to
include but not be limited to the following areas:
AOL Compatibility Testing (AOL Client V3.0, Windows 95/Macintosh, Browser:
MSIE 3.X/MSIE 2.1; AOL Client V4.0, Windows 95/Macintosh, Browser: MSIE
3.X); Caching Implementation; Graphics Quality; User Interface and
Functional Testing; Review of Advanced Web Technologies; Load Testing;
Website Architecture (Hardware, Network Configuration Software - Web
Servers, Databases, etc.); Network Redundancy and Reliability; Performance
Thresholds (Network Bandwidth, Web Server Capacity, Simultaneous Users);
and Electronic Commerce (Encryption Validation, Encryption Technology -SSL
V2/V3, PCT, Commerce Implementation Review - Cookies, iCat, Webforce, etc.,
Facility Physical Security, Safeguards Related to Private Customer
Information).
5. User Interface. ICP will maintain a graphical user interface within the
Linked ICP Interactive 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 any link to the ICP Internet Site 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.
6. Service Level Response. ICP agrees to use commercially reasonable efforts
to provide the following service levels in response to problems with or
improvements to the Linked ICP Interactive Site:
(a) For material functions of software that are or have become substantially
inoperable (e.g., inability to access website or conduct transactions), ICP
will provide a bug fix or workaround within four (4) hours after the first
report of such error to AOL and the ICP.
(b) For functions of the software that are impaired or otherwise fail to
operate in accordance with agreed upon specifications (e.g., search
engine), ICP will provide a bug fix or workaround within twenty-four (24)
hours after the first report of such error to AOL and the ICP.
(c) For errors disabling only certain non-essential functions (e.g., broken
links or noncritical applications), ICP will provide a bug fix or
workaround within fourteen (14) days after the first report of such error
to AOL and the ICP.
(d) For all other errors, ICP will address these requests on a case-by-case
basis as soon as reasonably feasible.
7. Monitoring. ICP will provide AOL with ICP's detailed escalation procedures
(e.g., contact names and notification mechanisms such as email, phone,
page, etc.) and notification of any scheduled or unscheduled downtimes. AOL
Network Operations Center will work with ICP's designated
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technical contacts in the event of any performance malfunction or other
emergency related to the Linked ICP Interactive Site and will either assist
or work in parallel with ICP's contact using ICP tools and procedures, as
applicable. The Parties will develop a process to monitor performance and
member behavior with respect to access, capacity, security and related
issues both during normal operations and during special promotions/events.
8. Telecommunications. The Parties agree to explore encryption methodology to
secure data communications between the Parties' data centers such that no
private member information requested by the ICP will be transferred
unencrypted. The network between the Parties will be configured such that
no single component failure will significantly impact AOL Members. The
network will be sized such that no single line runs at more than 70%
average utilization for a 5-minute peak in a daily period.
9. Security Review. ICP and AOL will work together to perform an initial
security review of, and to perform tests of, the ICP system, network, and
service security in order to evaluate the security risks and provide
recommendations to ICP, including periodic follow-up reviews as reasonably
required by ICP or AOL. ICP will use commercially reasonable best efforts
to fix any security risks or breaches of security as may be identified by
AOL's Operations Security. Specific services to be performed on behalf of
AOL's Operations Security team will be as determined by AOL in its sole
discretion.
10. Technical Performance. ICP will perform the following technical
obligations (and any reasonable updates thereto from time to time by AOL):
(a) ICP will design the Linked ICP Interactive Site to support the Windows
version of the Microsoft Internet Explorer 3.0 and 4.0 browser, the
Macintosh version of the Microsoft Internet Explorer 2.1 and 3.0, and make
commercially reasonable efforts to support all other AOL browsers listed
at: "http://webmaster.info.aol.com/BrowTable.html."
(b) ICP will configure the server from which it serves the site to examine the
HTTP User-Agent field in order to identify the "AOL Member-Agents" listed
at: "http://webmaster. info.aol.com/Brow2Text.html."
(c) ICP will design its site to support HTTP 1.0 or later protocol as defined
in RFC 1945 (available at "http://ds.internic.net/rfc/rfc1945.text") and to
adhere to AOL's parameters for refreshing cached information listed at
http://webmaster.info.aol.com/CacheText.html.
11. AOL Internet Products Partner Support. AOL will provide ICP with access to
the standard online resources, standards and guidelines documentation,
technical phone support, monitoring and after-hours assistance that AOL
makes generally available to similarly situated web-based partners. AOL
support will not, in any case, be involved with content creation on behalf
of ICP or support for any technologies, databases, software or other
applications which are not supported by AOL or are related to any ICP area
other than the Linked ICP Interactive Site. Support to be provided by AOL
is contingent on ICP providing to AOL demo account information (where
applicable), a detailed description of the Linked ICP Interactive Site's
software, hardware and network architecture and access to the Linked ICP
Interactive Site for purposes of such performance and load testing as AOL
elects to conduct. As described elsewhere in this Agreement, ICP is fully
responsible for all aspects of hosting and administration of the Linked ICP
Interactive Site and must ensure that the site satisfies the specified
access and performance requirements as outlined in this Exhibit E-2.
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EXHIBIT F
---------
Sample Editorial Guidelines
---------------------------
The following is for purposes of general agreement & discussion only and shall
be used as the basis for creating definitive "Editorial Guidelines" as called
for in the Agreement between AOL and ICP. Notwithstanding the forgoing, the
definitive "Editorial Guidelines" shall in no way be limited to the following.
AOL SPORTS PROGRAMMING GUIDELINES: OUTLINE OF KEY COMPONENTS FOR AOL/ICP
INTEGRATED EDITORIAL RELATIONSHIP
Sports coverage must stress immediacy, depth, and interactivity. That is,
screens must be regularly updated to reflect game and news coverage; appropriate
links must be added to provide background and context to the stories; and
opportunities for interactivity must be linked to the stories.
1. Maintenance of Areas and Frequency of Programming
The Team Pages and Star Pages need to be changed as often as determined by AOL.
In general, this means for In-Season coverage of the major sports (Pro and
College Football, Pro and College Basketball, Baseball, Hockey), all promo slots
will be fresh each day by 7 a.m. and the top promo slots will change throughout
the day as mutually agreed by both parties. The top promo slots also will be
updated throughout the daytime as events or news warrant. During the off-season,
all sport-by-sport screens will change at least once daily.
The Team Pages and Star Pages should be checked by copy editors to make sure
that everything is accurate and that the links are working properly. The sports
screens need to be perfect when it comes to details such as scores, names of
teams, players and events, dates, spelling, grammar, and links to content and
photos. When a mistake is identified, it must be corrected immediately,
regardless of the time of day.
All screens must be checked constantly to make sure that the information is
timely and accurate. Changes must be made before something becomes outdated.
2. Promotions/Style and Guidelines
The text, headlines and captions should be written in a direct newspaper style
that is consistent with what is currently on the AOL Sports site. The writing
will reflect a consistent editorial attitude determined by AOL. It is important
that the AP editorial style guide be followed. There should never be more than
two hyperlinks within a story text field. The hyperlinks need to be written in a
clear manner and go directly to what is being promoted. Blind hyperlinks are not
acceptable; the member must always have a good idea of where the link will take
him before he clicks on it.
Links to commerce opportunities will not be inserted ad hoc. Instead, they will
be used in contextually appropriate areas as identified by AOL and ICP.
3. Escalation Procedures and Disputes
AOL Sports has final say on all editorial decisions.
4. Linking
ICP will receive the wingdings on the Team Pages and Star Pages that have been
agreed to in the Agreement. ICP cannot hyperlink or link to other ICP content or
commerce within a story without the approval of AOL Sports.
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5. Editorial Calls
There will be consistent, daily communication regarding editorial direction.
6. Timelines of Changes
Any changes to links should be made immediately by ICP.
7. Right to Modify Links
ICP does not have the right to modify the copy for AOL Sports or AOL Sports News
links. ICP does not have the right to update the links AOL Sports owns (unless
requested by AOL Sports). AOL Sports can modify the language on ICP links when
needed to conform to the AOL Sports style as indicated above.
8. Minimum Standards
At a minimum, the Programming Guidelines will provide that ICP shall not
include, without AOL's prior approval, any Content that (i) is sexually
explicit, (ii) contains profanity, (iii) is slanderous or libelous, (iv)
denigrates a particular group based on gender, race, creed, religion, sexual
preference or handicap, (v) violates AOL's terms of Service, or (vi) does not
comply with any provision of this Agreement.
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EXHIBIT G
Star Online Area Content
------------------------
(A) Athlete Online Areas. Each Athlete Online Area shall contain the following
at a minimum:
. Athlete Journals: Regular journals for each Athlete (during the Season
and the Post-Season), posted on a regular and timely basis. Journal
content shall be fresh, entertaining, and innovative, giving the
athlete's perspective on sports DIRECTLY to the fan. Whenever possible,
certain fans (AOL Members) will be highlighted to heighten the
interactivity of the Journals.
. Bulletin Boards and Chat Rooms: ICP shall produce, manage, and maintain
Athlete bulletin boards and Athlete Chat Rooms in which fans can
communicate to each other and in which Athletes (via ICP) will respond
to member questions within their own folders or chat room.
. Athlete "Themed Nights" and Regular Athlete Programming: Athletes will
be participants in regularly scheduled online programming as set forth
in this Agreement. These programs may involve live chats, question and
answer sessions, and unique content material submitted by the Athletes,
such as analyzing highlights from the past week's games while the
footage is shown on AOL. All "themed nights" and Athlete programming
must be pre-approved by AOL, which approval shall not be unreasonably
withheld or delayed.
. Content Links to other AOL sports sites: Links with other AOL sports
sites. Such links shall first be approved by both parties hereto, which
approval shall not be unreasonably withheld or delayed.
. Athlete Direct Fan Club: Online membership clubs, which may include but
not be limited to offering discounted Memorabilia Products, ticket
discounts to special events only accessible by the members, special one-
on-one chats, etc... to members based on usage and contest promotions.
. Athlete Buddy Lists: ICP shall use commercially reasonable efforts to
encourage each Athlete to log into the America Online brand service
under a published screenname (available by Buddy List), during which
time the Athlete can attend a chat room or auditorium chat event with
AOL members.
ICP warrants and represents that its failure to provide AOL with [*] within
one hundred eighty (180) days of execution shall be deemed a material
breach of this Agreement. In addition to any rights or remedies AOL may
have under this Agreement, if ICP fails to secure such Athletes within one
hundred eighty (180) days from execution of this Agreement, AOL shall be
entitled to immediately terminate this Agreement and recoup from ICP within
ten days (i) the entire (i.e. not pro-rated) amount of any fees paid by AOL
to ICP hereunder, and (ii) all reasonable production costs associated with
AOL's development of the Online Area to date.
(B) Other Programming. In addition, the Stars Online Area shall include
programming geared toward crossover usage with other AOL Channels. ICP and
AOL (to the extent its participation is required) shall use commercially
reasonable efforts to cause the Stars Online Area to include content which
will be suitable for links to and from the following channels:
. Kids Channel -- ICP shall produce and manage kids programming and
content, subject to the terms and conditions of the Kids Channel.
Subject to this condition, ICP shall provide to the AOL Kids Channel the
following features, at a minimum: an Aggregated Min Screen, updated
weekly;
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twelve (12) Athlete Journals, updated weekly; The Favre Files (or
similar slideshow-oriented fun series), updated weekly; the Sports
Station for Kids (scores, headlines, etc.), updated daily; Message
Boards for all Athlete Journals, screened daily; a Sports Stars section
which will contain a permanent link or links to Athlete Direct Athlete
Areas and programming designed for kids. ICP acknowledges that all such
Content is content targeted towards children aged 12 and under and ICP
agrees that such Content, including any advertising, commerce and
promotions, shall fully comply with AOL's Kids Policies. In addition,
there shall be public relations support for the Kids Only Channel from
the Athletes featured therein.
ICP agrees to use commercially reasonable efforts to create content and
programming which is suitable for other AOL channels upon the request of
AOL, subject to appropriate links from these channels to the Online
Area.
(C) Updates. ICP shall update the Stars Online Area in a commercially
reasonable manner so that the site is continually fresh on a daily basis as
agreed to by AOL.
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EXHIBIT H
Content of Feeds
----------------
A. PSX Feed. ICP shall provide the PSX Feed in general conformity with
the following description:
(I) PSX Team Reports. The following reports ("PSX Team Reports") shall
be approximately 1000 words per team in length. Each of the PSX Team
Reports will be provided two times each week during the Season and
once each week during the Off-Season. Each PSX Report shall include
a Season preview for each team (the "Season Preview"), a Post-Season
review for each team (the "Post Season Review") and a Draft Special
for NFL football in April and for NBA Basketball in June (the "Draft
Specials").
(A) PSX NFL Football Team Reports. Team-by-team reports for each
team in the NFL ("PSX NFL Football Team Reports") sorted as
follows:
(i) National Football Conference
(ii) American Football Conference
(B) PSX MLB Baseball Team Reports. Team-by-team reports for each
team in MLB ("PSX MLB Baseball Team Reports") sorted as follows:
(i) National League
(ii) American League
(C) PSX NBA Basketball Team Reports. Team-by-team reports for each
team in the NBA ("PSX NBA Basketball Team Reports") sorted as
follows:
(i) Eastern Conference
(ii) Western Conference
(D) PSX NHL Hockey Team Reports. PSX reports focusing on NHL inside
information, including insights into strategy and personnel in
the NHL ("PSX NHL Hockey Team Reports") during the NHL Season.
The PSX NHL Hockey Team Reports will be delivered in six weekly
conference files sorted as follows:
(i) Eastern Conference-Northeast
(ii) Eastern Conference-Atlantic
(iii) Eastern Conference-Southeast
(iv) Western Conference-Central
(v) Western Conference-Pacific.
(vi) Western Conference-Northwest
The PSX NHL Hockey Team Reports will not be as extensive as the
team-by team information found in PSX standard Reports, but will
provide analysis on all NHL teams on a weekly basis by PSX's
conference writers.
(II) PSX Editorial Package. Through its special feature columnists, ICP
shall provide to AOL, via the Feeds, seven (7) mutually agreed-upon
editorial columns ("Columns") per week from mutually agreed-upon
respected sports columnists ("Columnists"), including without
limitation, [*], and shall also include specials from nationally
known insiders ("PSX Editorial Package"). The Columns shall
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<PAGE>
cover various mutually agreed-upon topics/issues in professional
sports. Certain of these Columns will be devoted to a mutually
agreed-upon consistent subject matter (such as fantasy) each week
during the course of the year, and others will highlight the key
topics of that week, with an emphasis on the sports then In-Season.
ICP will cover breaking stories and submit these if, in its
editorial judgment, they are newsworthy. The PSX Editorial Package
shall generally include, but not be limited to, the following
additional coverage for each professional sport, in a form
substantially similar to that which ICP and/or Pro Sports Xchange,
Inc. has previously produced for AOL:mid-season reports by sport,
all star game Notebooks by sport, playoff and championship coverage
by sport, Season review by sport, draft coverage by sport, and
additional breaking stories.
B. CSX Feed. ICP shall provide the CSX Feed in general conformity with the
following description ("CSX Team Reports"):
(I) NCAA Football Reports. The following reports which shall be
approximately 1000 words per team in length:
(A) NCAA Football Team Reports. Team-by-team reports for each team
in the following conferences ("NCAA Football Team Reports"),
which NCAA Football Team Reports shall be provided twice per
each week during the Season and once each week during the Off-
Season:
(i) ACC
(ii) Big East
(iii) Big Twelve
(iv) Big Ten
(v) Pac Ten
(vi) SEC
(vii) WAC
(viii) Conference USA conferences
(ix) Independent teams (e.g.,Notre Dame)
(B) College Football Conference Reports. Reports provided on a
weekly basis during the NCAA college football regular season
covering the six remaining NCAA Division I-A independent
schools and the Mid-American and Big West conferences on a
conference-by-conference basis ("College Football Conference
Report").
(C) Ivy Reports. Reports provided weekly covering the Ivy League
on a team-by-team basis during the Ivy League regular season
("Ivy Reports").
(II) CSX Football Editorial Package. CSX shall provide, on a regularly
scheduled basis, an editorial package ("CSX Football Editorial
Package"), which shall include from time to time:
(A) National Columns. National Columns focusing on current events
and topics in NCAA football. The columns shall be provided a
minimum of four (4) times per week during the NCAA college
football regular season ("NCAA Football Season"). When events
warrant (i.e., Bowl Games, recruiting results, etc.), ICCP will
supplement its Special Events Coverage (defined below) with
additional
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National Columns. National Columns will run twice a week in the
Off-Season.
(B) Game Previews. Game Previews analyzing the major upcoming
Division I-A college football games during each week of the
NCAA Football Season.
(C) Game Day Feature. During the NCAA Football Season, a CSX
column highlighting a game(s) from that week.
(D) Top 112. Every week during the NCAA Football Season, ICP shall
create a Top 112 Column, ranking every Division 1-A team in the
country.
(E) Special Reports. ICP will provide seven special reports that
focus on key events in NCAA football formatted on a team-by-
team or conference-by-conference basis. These Special Reports
shall include:
<CAPTION>
------------------------------------------------------------------------------------------------------------------------
Name Coverage Date
------------------------------------------------------------------------------------------------------------------------
Season Previews Preview of all 11 conferences and Late August
independents (122 teams)
------------------------------------------------------------------------------------------------------------------------
Season Reviews A review of all 122 teams Early January
------------------------------------------------------------------------------------------------------------------------
Recruiting Preview Update on recruit's short lists Late January
------------------------------------------------------------------------------------------------------------------------
Recruiting Review Rating team and conference recruits Mid February
------------------------------------------------------------------------------------------------------------------------
Spring Football Preview Each team's primary focus Early April*
------------------------------------------------------------------------------------------------------------------------
Spring Football Review Spring practice review February
------------------------------------------------------------------------------------------------------------------------
Recruiting Features Focus on individual recruits April
------------------------------------------------------------------------------------------------------------------------
* The actual dates for Spring Practice have not yet been determined by the
teams. These reports will begin in April and run until all conferences have
been reviewed.
(F) Special Events Coverage. ICP shall cover the NCAA Division 1-A
Bowl Games, including team-by team reports on bowl teams on a
weekly basis until their bowl game is concluded. ICP shall also
provide in-depth analysis of the Kick-Off Classic, Pigskin
Classic, Blue-Gray Game, East-West Shrine, Senior Bowl and Hula
Bowl.
(G) Regional Recruiting News. In addition to the recruiting
previews and reviews, ICP shall provide a weekly column on
Regional Recruiting News once a week May through July.
(III) NCAA Basketball Reports. The following reports which shall be
approximately 1000 words per team in length:
(A) NCAA Basketball Teams Reports. Team-by-team reports for each
team in the following conferences ("NCAA Basketball Team
Reports"),
(i) ACC
(ii) Big East
(iii) Big Twelve
(iv) Big Ten
(v) Pac Ten
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(vi) SEC
(vii) Atlantic 10
(viii) Conference USA
(ix) Ivy League
(x) Big West
(xi) Colonial
(xii) Missouri Valley
(xiii) WAC
(xiv) MAC
Under the current schedule, which is subject to PSX modification
with AOL's reasonable approval, the NCAA Basketball Team Reports for
teams (i) through (viii) above shall be provided each Monday
throughout the Season, with each team covered until it is eliminated
from post-season and weekly during the Post-Season. The NCAA
Basketball Team Reports shall be provided on Tuesday throughout the
Season, which each team covered until it is eliminated from Post-
Season and weekly during the Post-Season.
(B) Conference Reports. Team-by-Team reports for the remaining
sixteen (16) conferences and 156 Division I teams on a once-
per-week basis ("Basketball Conference Reports"). While
following the same editorial approach as the NCAA Basketball
Team Reports, these Conference Reports will not cover each team
as extensively. However, teams in this group that qualify for
the NCAA and/or NIT tournaments will be covered as extensively
as the NCAA Basketball Team Reports with twice weekly coverage
during the period from qualification until elimination in the
above tournaments. The Conference Reports shall be provided for
each team in the following conferences:
(i) Sun Belt
(ii) Midwest Collegiate
(iii) West Coast
(iv) Metro Atlantic
(v) Big Sky
(vi) America East
(vii) Ohio Valley
(viii) Southern
(ix) Big South
(x) TAAC
(xi) Northeast
(xii) SWAC
(xiii) Southland
(xiv) Mid-continent
(xv) Patriot
(xvi) MEAC
(IV) CSX Basketball Editorial Package. ICP shall provide CSX
perspectives by college basketball writers seven days per week
during the Season ("CSX Basketball Editorial Package"), including
the following:
(A) National Columns. CSX's National Columns focus on current
events and topical issues in college basketball. The National
Columns will appear throughout the week (a minimum of four
files per week during the Season). The National
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Columns will be bylined by college basketball writers from
across the country. Additional regional columns will be
delivered during the NCAA tournament and periods of increased
news activity (see NCAA/NIT Tournament Coverage). National
Columns will be delivered weekly during the Off-Season.
(B) Game Previews. CSX Game Previews will provide a profile of
major games during the season. Top weekday games will be
previewed in capsules delivered on Mondays. Top weekend games
will be profiled in capsules delivered on Thursdays.
(C) Top 100. Each Sunday, ICP will deliver the CSX Top 100 Column,
ranking the top Division I teams in the country, with
appropriate comments.
(D) Special Team Reports. Five Special Team Reports during the
year that focus on key events in college basketball,
particularly in the off-season, on a team-by-team basis. These
Special Team Reports include:
-------------------------------------------------------------------------------
Name Coverage Date
-------------------------------------------------------------------------------
Season Preview A preview of all teams covered by Mid-November
NCAA Basketball Team Reports and
CSX Basketball Conference Reports
("Basketball Teams")
-------------------------------------------------------------------------------
Season Review A look back on the season for all April
Basketball Teams
-------------------------------------------------------------------------------
Recruiting Review Analysis of every team and May
conference
-------------------------------------------------------------------------------
Off-Season Spotlight Up close focus on an interesting May-October
coach, player or recruit from
major teams
-------------------------------------------------------------------------------
Summer Update Report on progress of team and July, August
players during the Off-Season;
look ahead to Season
-------------------------------------------------------------------------------
(E) NCAA/NIT Tournament Coverage. ICP will provide CSX analysis
and perspective on all teams remaining in both the NCAA and NIT
Tournament, with weekly coverage. Tournament coverage will
include the following elements:
--------------------------------------------------------------------------------
Name Coverage
--------------------------------------------------------------------------------
Team Reports Weekly Team Reports for all teams in each tournament
--------------------------------------------------------------------------------
Live Notebooks Notebooks from writers at NCAA tournament sites
--------------------------------------------------------------------------------
Special Columns Added columns for duration of tournaments
--------------------------------------------------------------------------------
Match-Up Analysis Evaluation of personnel and strategies that will
decide each game
--------------------------------------------------------------------------------
Historical Perspective Anthology of records, statistics and highlights
from previous NCAA tournaments
--------------------------------------------------------------------------------
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(F) November and December Tournaments. CSX analysis of the regular
season tournaments, including Notebooks, from key tournaments
such as the Maui Invitational, Great Eight and Preseason NIT.
(G) Conference Tournaments. CSX Team Reports and Conference
Reports will analyze the conference tournaments on a team by
team basis for all teams playing in the 28 conference
tournaments. Additional coverage will include regional columns
and on-site Notebooks analyzing the major conference
tournaments.
(H) Recruiting Coverage. CSX Basketball Recruiting Updates will be
included in the weekly Team Reports and analyzed in Special
Team Reports after the late-signing period in May. During the
Off-Season, the CSX Off-Season Spotlight will focus on notable
recruits, delving into their lives on and off the court as well
as their significance to their respective college programs.
Throughout the year, ICP shall provide a bi-monthly National
Column covering regional recruiting news, including reports
from major high school all-star games and camps.
(I) Breaking Stories. Utilizing the exclusive CSX writer network,
updates of breaking NCAA basketball stories.
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EXHIBIT I
AOL Approval
------------
A. AOL-Approved Links
AOL hereby approves the following links, subject to all terms and
conditions contained in the Agreement, including without limitation, AOL's right
to withdraw its approval pursuant to the Agreement, including but not limited
to, Section 1.3 of the Agreement:
1. each Athlete Online Area at http://www.athlete direct.com for Athletes
approved by AOL pursuant to Exhibit A.1.1.2(C)
2. Stars Online Area Content set forth in Exhibit G located on the Star
Web Area at http://www.athletedirect.com in accordance with the terms
of this Agreement
3. commerce areas on, or through subpages on,
http://www.athletedirect.com and http://www.psx.com where only the
Products approved by AOL subject to this Agreement are offered, sold
and/or licensed by ICP in accordance with the terms of this Agreement
4. http://www.athletedirect.com home page
5. http:www.psx.com home page
The Content contained in http://www.athletedirect.com and http://www.psx.com, or
to be contained in such sites upon commercial launch of such sites or a
reasonable time thereafter, shall be as described below in Paragraph C. Without
limiting any other rights or remedies AOL may have under this Agreement, AOL
reserves the right to withdraw its approval to links to such site(s) if such
site(s) do not conform to the descriptions set forth below in Paragraph C.
B. AOL-Approved Product Categories*
AOL hereby approves ICP's offer or sale of the following categories of
sports-related Products in or through the Online Area:
[*]
[*]: Mass-produced, generally available team or league branded headgear,
footwear, swimwear, and apparel (i.e. sweaters, sweatshirts, jackets, shirts,
shorts, pants, sweatpants, and undergarments).
* Notwithstanding AOL's approval of the above categories of Products, the
Placements and any Content or Links on the AOL Network (including the Welcome
Mats and the hybrid browsers) shall not advertise or promote music or books,
without AOL's prior approval.
** Notwithstanding the foregoing, these categories of Products which are
licensed and sold on a Linked ICP Interactive Sites in accordance with the terms
of this Agreement shall not be subject to AOL's right to revoke its approval
for ICP to sell or license such Products in or through such Linked ICP
Interactive Site based upon exclusivities or other contractual commitments
granted by AOL after the Effective Date.
*** Each of the categories of sports merchandise shall be subject to AOL's
right to revoke its approval based upon its exclusivity or other contractual
commitments, including without limitation, those granted by AOL after
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[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
the Effective Date, but AOL shall not exercise such right with respect to all
such categories.
C. Description of Content
A. http://www.athletedirect.com
1. General Description of Content and Commerce
Athlete-oriented content, including content designed to provide
Athlete-user interaction
Athlete-related commerce
Member Generated Content: None. Intent to include content such as:
chat rooms; live participation by athletes through text, audio, and
video by athletes; interaction between athletes and fans in real-time
application; message boards featuring questions from users and answers
from athletes to a limited number of posts; member-designed web pages
and content; member-designed contests and activities; fan clubs
centered around athletes including community activities; member-driven
commerce.
Premium Content: Intent to include content such as: audio, video, and
text programming involving athletes on a pay-per-view, pay-per-use, or
subscription basis; fan clubs which may involve registration fees;
information and other special content which may be charged for.
Update Frequency: No less than on a day-part basis on many screens;
daily on most screens, no less than weekly on all non-generic screens.
2. Features
Integrated Features or Links to Such Features: Intent for features to
include: official home pages of athletes; other athlete-related and
sport-related content; content directly from athletes; celebrity
related content. Regular features include first-person account from
athletes, Q and A, chats, games, contests, news, and sports
information. Multimedia content. Sports stores.
Integrated Search Engines: Intent for site to contain internal search
features (not search capacity for other interactive areas). To the
extent the site contains external search features, such features shall
be Two Clicks away from the AOL Network. No integrated search engine
shall contain the branding of any other Interactive Service or any
entity reasonably construed to be in competition with AOL component
products.
Integrated Community: Intent to operate communities using chat,
message boards, fan clubs, and other interactivities.
Instant Messaging or Other Integrated Communications: Intent for site
to contain integrated communication features; provided that, ICP shall
use AOL products for all instant messaging services and other
integrated communications features viewed by, available to or utilized
by AOL Members. ICP shall not enter into any contractual arrangement
with any third party for the provision of instant messaging services
or other integrated communications features to be viewed by, available
to or utilized by non-AOL Members without giving prior written notice
thereof to AOL and, for a period of thirty (30) days thereafter,
negotiating in good faith with AOL the terms and conditions upon which
AOL would provide such services to ICP.
Free Email: None.
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3. Technologies Employed: Server & Operating System: The operating
system and database of choice for the Athlete Direct system is planned
to be UNIX operating system (Solaris) on Sun hardware with an Oracle
relational database design.
Application Server: The application server for the Athlete Direct
system is planned to be implemented in an open systems design using
open standards, a mature technology which provides API's for third
party vendor solutions, is scalable, customizable and supports
standard commerce and encryption requirements.
B. http://www.psx.com
1. General Description of Content and Commerce
Sports league, game, team and player information
Sale and promotion of Premium Information Products
Sports-related commerce
Member Generated Content (e.g., chat, live events, message boards,
personals and classifieds): Intent for site to include content such
as: member-driven team clubs centered around specific sports teams or
groups; chat rooms; member-driven commerce live participation by
sports personalities through text, audio, and video by athletes;
interaction between sports personalities and fans in real-time
application; message boards featuring questions from users and answers
from sports personalities to a limited number of posts; member-
designed web pages and content; member-designed contests and
activities.
Premium Content: Intent to include content such as: audio, video, and
text programming involving sports personalities on a pay-per-view,
pay-per-use, or subscription basis; clubs which may involve
registration fees; information and other special content which may be
charged for, to include such products as My Baseball Daily, My
Football Daily, derivatives of such products in other sports; Fred
Edelstein's Football Insider; derivatives of such products involving
other sports and/or sports personalities.
Update Frequency: Premium Content offerings will be updated, dependent
upon the nature of the offering, intra-daily, daily, weekly, monthly,
as a one-time product, or any variable therein. The main page will be
updated no less than weekly.
2. Features
Integrated Features or Links to Such Features: Intent to include
sports editorial information, columns, news, scores, statistics, links
to relevant sports information or sites of interest, links to all
premium content offerings available by or through PSX. Sports stores
Integrated Search Engines: Intent for site to contain internal search
features (not search capacity for other interactive areas). To the
extent the site contains external search features, such features shall
be Two Clicks away from the AOL Network. No integrated search engine
shall contain the branding of any other Interactive Service or any
entity reasonably construed to be in competition with AOL component
products.
Integrated Community: Intent to establish communities including team
fan clubs and related offerings using chat, message boards, and other
interactivities and involving participation by sports personalities
and deep editorial information
Instant Messaging or Other Integrated Communications: Intent for site
to contain integrated communication features; provided that, ICP shall
use AOL products for all instant messaging services and
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other integrated communications features viewed by, available to or
utilized by AOL Members. ICP shall not enter into any contractual
arrangement with any third party for the provision of instant
messaging services or other integrated communications features to be
viewed by, available to or utilized by non-AOL Members without giving
prior written notice thereof to AOL and, for a period of thirty (30)
days thereafter, negotiating in good faith with AOL the terms and
conditions upon which AOL would provide such services to ICP.
Free Email: None.
3. Technologies Employed: Server & Operating System: The operating
system and database of choice for the PSX system is intended to be
UNIX operating system (Solaris) on Sun hardware with an Oracle
relational database design.
Application Server: The application server for the PSX system is
intended to be implemented in an open systems design using open
standards, a mature technology which provides API's for third party
vendor solutions, is scalable, customizable and supports standard
commerce and encryption requirements.
In addition, PSX uses commercial software such as Netscape Publishing
System to create its subscription products.
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EXHIBIT J
---------
[*]
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
Exhibit K
---------
AOL Team Pages Update Schedule
------------------------------
I. All Teams in Three Major Professional Sports plus Key (up to 10) Hockey
Teams
In-Season: Editorial: Daily, plus day-part programming for breaking
stories of major import as reasonably determined by AOL with
consultation of E-Sport .
Photos: Daily, plus in conjunction with breaking stories
above.
Links: Daily
Off-season: Editorial: Three times per week, plus breaking stories of
major import as reasonably determined by AOL with
consultation of E-Sport
Photos: Three times per week, plus in conjunction with
breaking stories above.
Links: Daily sweep
II. Major College Pages - One combined page per major college team - (Up to
60)
August 1 - April 7: Editorial: Daily, plus day-part programming for
breaking stories of major import as reasonably
determined by AOL with consultation of E-Sport
Photos: Daily, plus in conjunction with breaking
stories above.
Links: Daily
April 7 - August 1: Editorial: Twice per week, plus breaking stories of
major import as reasonably determined by AOL with
consultation of E-Sport
Photos: twice per week, plus in conjunction with
breaking stories above.
Links: Four times per week
III. Minor College Pages -- One combined page per minor college team -remaining
Division I football and selected Division I basketball (Up to 60)
August 1 - April 7: Editorial: Three times per week, plus breaking
stories of major import as reasonably determined by
AOL with consultation of E-Sport
Photos: Three times per week, plus in conjunction
with breaking stories above.
Links: Four times per week
* non major hockey teams will use this schedule in-season
April 7 - August 1: Editorial: Once per week, plus breaking stories of
major import as reasonably determined by AOL with
consultation of E-Sport
Photos: Once per week, plus in conjunction with
breaking stories above.
Links: Three times per week
* non major hockey teams will use this schedule off-season