Interactive Services Agreement - America Online Inc. and Broadband Sports Inc.
Execution Copy
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
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This Interactive Services Agreement (this "Agreement"), effective as of
March 15, 2000 (the "Effective Date"), is made and entered into by and between
America Online, Inc. ("AOL"), a Delaware corporation, with its principal offices
at 22000 AOL Way, Dulles, Virginia 20166 and Broadband Sports, Inc.
("Interactive Content Provider" or "ICP"), a Delaware corporation, with its
principal offices at 2120 Colorado Avenue, Suite 200, Santa Monica, California
90404 (each a "Party" and collectively the "Parties").
INTRODUCTION
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AOL and ICP each desires that AOL provide Promotions of ICP Content through
the AOL Network, subject to the terms and conditions of this Agreement.
Capitalized terms used but not otherwise defined in this Agreement shall be as
defined on Exhibit B attached hereto.
TERMS
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1. DISTRIBUTION; PROGRAMMING
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1.1 Promotion and Distribution. Beginning on a mutually agreed upon
date(s) after the Effective Date, AOL shall provide ICP with the
Promotions as set forth on Exhibit A. The promotions described on
Exhibit A-1 and any other promotions provided by AOL to ICP shall be
referred to as the "Promotions." Except to the extent expressly
described herein, the exact form, placement and nature of the
Promotions shall be determined by AOL in its reasonable editorial
discretion. The Parties hereby acknowledge that AOL has an existing
exclusive agreement with a third party that will preclude AOL from
providing ICP with [*] until AOL's obligations under that agreement
end. If AOL is unable to provide ICP with [*] within one (1) year from
the Effective Date, ICP shall be entitled to a reduction in the
Carriage Fee equal to $5,000,000.00. The Carriage Fee shall be lowered
by reducing the in-kind commitments and cash components of the
Carriage Fee equally on a going forward basis (i.e., no refund of
payments made) for a total of $5,000,000.00 (i.e., a $2,500,000.00
reduction for each of the remaining two years).
1.2 License. ICP hereby grants AOL a nonexclusive, nontransferable
(except to AOL Affiliates) worldwide license to use, market, license,
store, distribute, reproduce, display, adapt, communicate, perform,
translate, transmit, and promote the Customized Site, Customized
Programming and the Licensed Content (or any portion thereof) through
the AOL Network as set forth in Exhibit A and/or as AOL may determine
in its sole discretion by integrating Content from the Customized Site
and/or Customized Programming by linking to specific areas of the
Customized Site and/or Customized Programming, provided that the link
to any such Content on the AOL Network shall conform to the
specifications of an ICP Presence. Any Linked ICP Interactive Sites
shall be subject to the foregoing license. Subject to the rights and
License described herein, ICP retains all right, title and interest in
and to the Licensed Content. AOL's use of the Licensed Content shall
be subject to the express requirements of this Agreement.
1.3 Promotion of Athletes. ICP shall secure the promotional rights set
forth in Exhibit A with respect to each athlete and columnist
described in Exhibit A.
1.4 Carriage Fee. ICP shall pay AOL [*] as follows:
1.4.1 Cash Payment. ICP shall pay AOL [*] in cash as follows: [*] on
the Effective Date, [*] within Sixty (60) days of the Effective
Date, and
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[*] on or before the date that is three (3) months, six (6)
months, nine (9) months, twelve (12) months, fifteen (15)
months, eighteen (18) months, twenty one (21) months, twenty
four (24) months, twenty seven (27) months, and thirty (30)
months respectively after the Effective Date. ICP shall also
make in-kind payments totaling [*] as set forth below.
1.4.2 In-Kind Programming and Promotion. ICP shall provide AOL with
the equivalent of [*] of in-kind commitments which shall be
subject to the following: (i) AOL Keyword Guidelines attached
hereto as Exhibit G; (ii) AOL approval over any creative
treatment of an AOL Presence; (iii) a media plan/schedule to be
mutually agreed upon at the beginning of each year of the Term;
(iv) Western Media (or another independent third party
determined by AOL) valuation of all in-kind commitments; and
(v) a minimum of [*] of the in-kind commitments in the form of
[*] (the "ICP In-Kind Commitments"). The ICP In-Kind
Commitments shall be evenly distributed over the initial term
of this Agreement or Extension Term (as the case may be),
unless otherwise mutually agreed upon between the Parties. The
ICP In-Kind Commitments shall total [*] per year and ICP shall
use commercially reasonable efforts to provide the foregoing
commitments evenly during each quarter of the year (i.e., [*]
per quarter). If AOL determines that ICP has failed to deliver
[*] of ICP In-Kind Commitments during the first year of the
initial term based on a valuation provided by Western Media,
then ICP shall have sixty (60) days from its receipt of written
notice from AOL to make up such ICP In-Kind Commitment
shortfall. If ICP is unable to make up such shortfall during
the period described in the preceding sentence, then ICP shall
immediately [*] in an amount equal to the ICP In-Kind
Commitment shortfall. If AOL determines that ICP has failed to
deliver [*] of ICP In-kind Commitments during the second year
of the initial term based upon the same valuation methods
described herein, ICP shall have sixty (60) days from its
receipt of written notice from AOL to make up such ICP In-Kind
Commitment shortfall. If ICP is unable to make up any such
shortfall during the period described in the preceding
sentence, then ICP shall immediately [*]. If AOL determines
that ICP has failed to deliver [*] of ICP In-Kind Commitments
by the end of the tenth quarter of the initial term [*] of ICP
In-Kind Commitments during either of the eleventh or twelfth
quarter of the initial term, AOL may require ICP to [*] to
satisfy such shortfall within thirty (30) days of receiving
written notice from AOL regarding such shortfall. The ICP In-
Kind Commitments are not intended to satisfy ICP's cross-
promotion obligations under Section 2 except as otherwise
agreed to herein.
1.5 Management. ICP shall design, create, edit, manage, review, update
(on a daily basis or as otherwise specified herein), and maintain the
Customized Site, Customized Programming and the Licensed Content in a
timely and professional manner and in accordance with the terms of
this Agreement and shall keep the Licensed Content current, accurate
and well-organized at all times. ICP shall ensure that the Licensed
Content within the Customized Site and Customized Programming in
aggregate is equal to or better than any non-surcharge Content (i.e.,
Content for which no third party pays ICP) dedicated to athlete and/or
team Content distributed by ICP through any other ICP Interactive Site
in all material respects, including without limitation, quality,
breadth, depth, timeliness, functionality, features, prices of
products and services and terms and conditions, provided that any
changes to the Customized Programming or the Licensed Content
necessary to comply with this sentence shall be subject to AOL's
review and approval and the terms of this Agreement. ICP shall not be
in breach of the preceding sentence (i) where ICP has material
technical limitations in implementing the foregoing with respect to a
specific AOL Property or (ii) where ICP has included a specific
athlete on another Interactive Site but not on the Customized Site or
Customized Programming, provided that ICP is otherwise in compliance
with the athlete requirements set forth in Exhibit A. ICP shall
provide the necessary
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technical support in order to optimize ICQ tools and functionality in
a manner that AOL requests. Except as specifically provided for
herein, AOL shall have no obligations of any kind with respect to the
Customized Site or Customized Programming. ICP shall be responsible
for any hosting or communication costs associated with the Customized
Site and Customized Programming (including any Linked Interactive
Sites), including, without limitation, the costs associated with (i)
any agreed-upon direct connections between the AOL Network and the
ICP. AOL Members shall not be subject to a registration process (or
any similar process) in order to access and use the Customized Site,
Customized Programming (including any Linked ICP Interactive Site) or
the Licensed Content; 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. During
the Term and for the two (2) year period after the expiration or
termination thereof, ICP shall allow AOL Members to access and use any
non-Premium Information Products on any Linked ICP Interactive Site on
terms and conditions no less favorable than the terms and conditions
available to other users of such ICP Interactive Site. In the event
ICP fails to comply with any material term of this Agreement,
including without limitation ICP's obligations under this Section 1.5
or its promotional obligations under Section 2, AOL will have the
right (in addition to any other remedies available to AOL hereunder)
to decrease the promotion it provides to ICP hereunder and/or to
decrease or cease any other contractual obligation of AOL hereunder
until such time as ICP corrects its non-compliance, in which event AOL
will be relieved of the proportionate amount of any promotional
commitment made to ICP by AOL hereunder corresponding to such decrease
in promotion.
1.6 Impressions Target. AOL shall provide ICP with at least [*]
Impressions from placement of an ICP Presence on the AOL Network as
set forth in Exhibit A-1 (the "Impressions Target"), provided that
only ICP Presences that contain a link to the Customized Site or
Customized Programming will count against the Impressions Target. AOL
will make commercially reasonable efforts to distribute the
Impressions evenly during the Term. ICP shall receive at least (a) [*]
Impressions annually on the Scoreboards Screens, (b) [*] banner ad
Impressions annually on the Sub-Scoreboards Screens on Saturdays and
Sundays during the active seasons of the sports relating to such
scoreboards, and (c) at least [*] Impressions annually from run of
sports banner ad placements. In the event AOL provides an excess of
any annual Impressions target in any year, the Impressions target for
the subsequent year shall be reduced by the amount of such excess up
to [*]. Any shortfall in any of the foregoing Impressions targets at
the end of a year will not be deemed a breach of this Agreement by
AOL; instead such shortfall will be added to the Impressions targets
for the subsequent year. In the event that the any of the forgoing
Impressions target is not met (or will not, in AOL's reasonable
judgment, be met) during the Term, then as ICP's sole remedy, AOL may
either (a) extend the Term for up to six (6) months without additional
carriage fees payable by ICP, (b) 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) from time to time, or (c) some combination thereof.
If AOL chooses option (a) and is unable to meet any of the Impressions
target, AOL shall be required to provide the undelivered Impressions
within three (3) months as provided for in (b) above. If AOL is unable
to deliver Impressions as set forth in the preceding sentence, AOL
shall make a [*] refund of ICP [*] payments made to AOL [*].
1.7 Site and Programming Preparation. Provided that ICP has achieved Site
and Programming Preparation for the carriage it will receive on the
main screen and scoreboards of the Sports Channel within the AOL
Service within five (5) days from the Effective Date, AOL will provide
carriage within the AOL Service for such Customized Programming within
sixty (60) days from the Effective Date. Provided that ICP has
achieved Site and Programming Preparation by a mutually agreed upon
date, AOL shall substantially provide Promotions on all Covered
Properties,
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except for Netscape pursuant to Section 1.1,within 180 days from the
Effective Date. "Site and Programming Preparation" shall mean that ICP
shall have completed all necessary production work (including
completion of all necessary training for AOL's proprietary "Rainman"
publishing tool) for the Customized Programming and any other related
areas or screens (including programming all Content thereon);
customized and configured the Customized Programming in accordance
with this Agreement; and completed all other necessary work
(including, without limitation, undergone all AOL site testing set
forth on Exhibit F) to prepare the Customized Programming and any
other related areas or screens to launch on the AOL Network as
contemplated hereunder.
1.8 Member Benefits. ICP will generally promote through the Customized
Site and Customized Programming any special or promotional offers made
available by or on behalf of ICP through any ICP Interactive Site or
any other distribution channel. In addition, ICP shall promote through
the Customized Site or Customized Programming 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:
specially-priced sports memorabilia. 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. Inadvertent omissions of such offers
shall not be deemed a breach of this Agreement.
1.9 Teams Premier Status. So long as ICP [*], ICP shall have the premier
status rights described herein. In the event that ICP is not [*],
then, in addition to any other available remedies, AOL may give ICP
written notice thereof and, if ICP fails to cure such [*], then AOL
may suspend or terminate ICP's premier status in whole or in part or
invoke any other available remedy under this Agreement. On the [*],
AOL shall not feature [*] or any portion thereof other than a [*],
except as specifically provided for below in this Section. The
prominence of the link to the Team Aggregation Pages from the Main
Screen and Department Screens of the AOL Service Sports Channel shall
generally be equal to the prominence of such links as they exist on
the Effective Date. The Main Screen and Department Screens within the
Sports Channels of each Covered Property will all include a prominent
link to the Team Aggregation Page. AOL shall in no way be precluded
from providing [*]. Any navigational links labeled "teams" [*] within
the Sports Channel of such Covered Property shall link to the Team
Aggregation Page or Team Pages. AOL shall not specifically target [*].
AOL will not act in bad faith to circumvent ICP's premier status under
this paragraph by [*]. AOL shall not be deemed to be in violation of
this Section 1.9 as a result of any placements, advertisements or
promotions as to which AOL has not received written notice from ICP so
long as AOL removes such placements, advertisements or promotions
within a reasonable time after receiving notice thereof, unless such
violation is [*] or intentional (i.e., with the specific intent of
violating the applicable provision).
1.10 Stars Premier Status. So long as ICP is in all material respects in
compliance with this Agreement, ICP shall have the premier status
rights described herein. In the event that ICP is not in compliance
with any material term of this Agreement, then, in addition to any
other available
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remedies, AOL may give ICP written notice thereof and, if ICP fails to
cure such material non-compliance within thirty (30) days thereof,
then AOL may suspend or terminate ICP's premier status in whole or in
part or invoke any other available remedy under this Agreement. On the
Restricted Screens, AOL shall not feature Permanent links to any Stars
Aggregation Area or any portion thereof other than a Stars Aggregation
Page, except as specifically provided for below in this Section. In
addition, AOL shall not provide a Permanent link from the Restricted
Screens to a web site of a ICP Stars Competitor, provided that AOL may
link to any ICP Stars Competitor content if such ICP Stars Competitor
removes its Stars Aggregated Areas, and, in the case of Rivals.com
only, both its Stars Aggregated Area and Teams Aggregated Areas so
that AOL Members cannot directly access or link to such content. AOL
shall not specifically target the Stars Aggregation Page with ICP
Stars Competitor's banner placements, but this in no way restricts any
run of service, run of channel or any other non-targeted advertising
or random advertisements. With respect to ICQ, AOL's obligation will
be limited to six months after the Effective Date, unless ICP provides
AOL with at least [*] which are not already contemplated by this
Agreement and which are reasonably satisfactory to AOL during such six
month period and every subsequent six month period [*]. Beginning six
(6) months after the Effective Date, AOL may at any time give notice
to ICP that it desires a specific international athlete or class of
international athletes (e.g., non-U.S. citizens) on ICQ, in which case
if ICP cannot provide such athletes or classes of athletes within 60
days, AOL may obtain such athlete content for ICQ from any third party
and feature Permanent links to such athlete content (including a Stars
Aggregation Page featuring such content) on any ICQ area, including
the Customized Site. Notwithstanding the foregoing, AOL shall in no
way be precluded from providing Permanent links to a Stars Aggregation
Page for athlete content of professional sports leagues, player
associations and/or college associations. Any navigational links
labeled "stars" controlled by AOL on a page that is solely branded
under the brand of a Covered Property within the Sports Channel of
such Covered Property shall link to the Stars Aggregation Page or
Stars Pages. AOL will not act in bad faith to circumvent ICP's premier
status under this paragraph by selling promotions or links within the
Restricted Screens that provide substantially Permanent promotion for
a particular Stars Aggregation Area. AOL shall not be deemed in
violation of this Section 1.10 as a result of any placements,
advertisements or promotions as to which AOL has not received written
notice from ICP so long as AOL removes such placements, advertisements
or promotions within a reasonable time after receiving notice thereof,
unless such violation is repeated (i.e., for the same ICP Competitor)
or intentional (i.e., with the specific intent of violating the
applicable provision).
1.11 Quality Standard for Continued Premier Status. AOL shall have the
right to suspend or terminate ICP's premier status, in whole or in
part, set forth in Section 1.9 if ICP is not one of the top three
providers of Team Aggregated Areas and Team Pages. Even if ICP
otherwise complies with the preceding sentence, ICP must still use [*]
to produce Content commensurate with such Content produced by the
other top two providers. AOL shall also have the right to suspend or
terminate ICP's premier status, in whole or in part, set forth in
Section 1.10, if ICP is not one of the top two (2) providers of
Content dedicated to individual star athletes. Even if ICP otherwise
complies with the preceding sentence, ICP must still use [*] to
produce Content commensurate with such Content produced by the other
top provider. In addition to having the foregoing market positions,
the quality of the Licensed Content must also be commensurate with
such market positions, as determined by evaluating the Customized Site
and the Customized Programming, as a whole, based on all of the
following relevant criteria: (a) an evaluation by a cross-section of
third-party reviewers, as reasonably determined by AOL, who are
recognized authorities in such market and can opine on material
quality averages or standards in such industry and (b) user traffic,
as measured by page views, and audience reach, as measured by share or
percentage of Internet online users as reported by Media Metrix or
similar organization reasonably determined by AOL. In addition to the
foregoing, beginning 180 days after the Effective Date, AOL shall also
have the right to suspend or terminate ICP's premier status, in whole
or in part, set forth in Section 1.10 for any particular
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sport(s) if ICP is not one of the top two (2) providers of Content
dedicated to individual star athletes in a particular sport(s). If AOL
exercises its rights in the preceding sentence with respect to a
particular sport(s) and AOL receives cash or barter payment for
permanent carriage of a third party Stars Aggregation Area within the
Restricted Screens, ICP shall be entitled to a reduction in Carriage
Fee on a going forward basis equal to [*] (divided equally between
cash and ICP In-Kind Commitments) for each sport that AOL removes
ICP's Premier Status. The reduction in Carriage Fee in the preceding
sentence only applies when AOL removes ICP's Premier Status with
respect to a particular sport(s) and not if AOL removes ICP's Premier
Status for the entire category. After receiving written notice from
AOL regarding non-compliance with the requirements in this Section
1.11, ICP shall have a [*] cure period to satisfy the foregoing
Quality Standards. If ICP cannot remedy the non-compliance set forth
herein, AOL may suspend, or terminate ICP's Premier Status in whole or
in part. In the event that AOL has suspended or terminated ICP's
Premier Status under this Section 1.11, AOL must restore ICP's Premier
Status within ninety (90) days of (i) AOL receiving written notice
from ICP regarding its coming back into compliance and (ii) AOL making
a reasonable determination that ICP has come back into compliance with
this Section 1.11. ICP's renewal of Premier Status pursuant to the
preceding sentence shall be subject to any other third party
agreements that AOL has entered into for Content during ICP's Premier
Status termination or suspension.
1.12 Permissible AOL Activities. Notwithstanding anything to the contrary
in Sections 1.9 and 1.10 above (and without limiting any actions which
may be taken by AOL without violation of ICP's rights hereunder), no
provision of this Agreement will limit AOL's ability (on or off the
AOL Network) to:
(i) Undertake activities or perform duties pursuant to arrangements
with third parties, including without limitation any
relationships with ICP Competitors, existing as of the Effective
Date. To the best of AOL's actual knowledge, AOL is not a party
to any material agreement that would require AOL to provide a
third party with Promotions that would materially violate AOL's
obligations under Sections 1.9 and 1.10. In the event that AOL
is in breach of the foregoing representation because there is a
material violation of ICP's premier status rights in Section 1.9
and/or 1.10, ICP's sole remedy shall be to provide AOL with
written notice of any such breach and if such breach is not
cured within ninety (90) days from AOL's receipt thereof, ICP
may terminate this Agreement;
(ii) Sell non-permanent advertising (e.g., banners, buttons, links,
sponsorships), within any Covered Property. AOL will not act in
bad faith to circumvent ICP's premier status under this
paragraph by selling promotions or links within the Restricted
Screens that provide substantially Permanent promotion for a
particular Team Aggregation Area or Stars Aggregation Area;
(iii) Enter into an arrangement with any third party for the primary
purpose of acquiring AOL Users whereby such third party is
allowed to promote or market its products or services to only
those AOL Users that are acquired as a result of such
arrangement; or
(iv) create non-permanent editorial or news commentary or
programming, and contextual links within such areas, relating to
any third party so long as such party does not pay AOL for such
links or commentary.
1.13 Reach on Restricted Screens. If the Restricted Screens are not
receiving [*] of the [*] within the AOL Service Sports Channel as
reported by Media Metrix or another third party reasonably determined
by AOL, ICP may provide written notice to AOL regarding the level of
reach on such screens. After receiving written notice thereof, AOL
shall enter into good faith negotiations with ICP to modify the
"Restricted Screens" category so that such screens will receive [*] of
the [*] within the AOL Service Sports Channel.
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2. CROSS-PROMOTION
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2.1 Cooperation. Each Party shall cooperate with and reasonably assist
the other Party in supplying material for marketing and promotional
activities.
2.2 Interactive Site. Within the Primary Site, ICP shall include a
prominent actionable promotional button (at least 90 x 30 pixels or 70
x 70 pixels in size) appearing on the first screen of the Primary Site
(the "AOL Promo"), to promote such AOL products or services as AOL may
designate (for example, the America Online brand service, the
CompuServe brand service, the AOL.com site, the Digital City services,
the ICQ service, MovieFone services, When.com calendaring services or
the AOL Instant Messenger service). AOL will provide the creative
content to be used in the AOL Promo. ICP shall post (or update, as the
case may be) the creative content supplied by AOL within the spaces
for the AOL Promo 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
Promo during the prior month. In the event that AOL elects to serve
the AOL Promo to the Primary 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 the Primary Site on which the AOL Promo will appear. In addition,
within the Primary Site, ICP shall provide prominent promotion, [*],
for the keywords associated with the Customized Programming and links
from the Primary Site to the relevant topic areas on AOL's AOL.com
site. To the extent that ICP promotes any instant messaging technology
or functionality, ICP shall promote the AOL Instant Messaging
functionality on its Primary Site.
2.3 Other Media. In addition to the ICP In-Kind Commitments, in ICP's
television, radio, print and "out of home" (e.g., buses and
billboards, point of purchase and other "place-based" promotions)
advertisements and in any publications, programs, features or other
forms of media over which ICP exercises at least partial editorial
control, ICP will include specific references or mentions (orally
where possible) of the availability of the Customized Site through the
AOL Network. At least [*] of such references or mentions shall be at
least as prominent as the ICP's listing of a URL for any ICP
Interactive Site. The remaining [*] of such references must be at
least visible, audible or legible as the case may be in any ICP
advertisement in print, radio, or television. To the extent that the
foregoing mentions or references satisfy AOL's standard barter
requirements and the conditions of Section 1.4.2, these references or
mentions shall count towards ICP's In-Kind Commitment obligation in
Section 1.4.2. All such references or mentions of AOL, and the use of
AOL's trademarks, trade names and service marks in connection
therewith, shall be in accordance with Section II of Exhibit C and
shall conform to the samples shown on Exhibit H.
2.4 Preferred Access Provider. When promoting AOL, ICP shall promote AOL
as the preferred access provider through which a user can access the
Customized Programming and/or the Primary Site and ICP shall use
commercially reasonable efforts to promote AOL as prominently as any
other Interactive Service as part of ICP's promotion of the Licensed
Content
3. REPORTING; PAYMENT.
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3.1 AOL Usage Reporting. AOL shall make available to ICP a monthly report
specifying for the prior month aggregate usage and Impressions with
respect to ICP's presence on the AOL Network, which are similar in
substance and form to the reports provided by AOL to other content
partners similar to ICP.
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3.2 Customized Programming Reporting. ICP will supply AOL with monthly
reports which reflect total impressions by AOL Members to the
Customized Programming during the prior month, the number of and
dollar value associated with the transactions involving AOL Members
and any registration information obtained from AOL Members at the
Customized Programming during the period in question. ICP represents
that all URLs related to the Customized Programming are listed on
Exhibit B (Primary Site definition) and ICP shall provide AOL with an
update of such list promptly upon any change thereto.
3.3 Promotional Commitments. ICP shall provide to AOL a monthly report
documenting its compliance with any promotional commitments
(including, without limitation, any in-kind commitments set forth in
Section 1.4.2) it has undertaken pursuant to this Agreement in the
form attached as Exhibit E hereto, and ICP shall provide AOL with
impressions data with respect to the promotions specified in Section
2.
3.4 Advertising. ICP shall provide monthly detailed information to AOL
regarding (i) AOL Advertisements (as defined below) sold by ICP or its
agents and (ii) any advertising or promotional activity through the
Customized Programming, Customized Site or any Linked ICP Interactive
Sites.
3.5 Wired Payments. All payments by ICP hereunder shall be paid in
immediately available, non-refundable U.S. funds wired to the "America
Online" account, [*] at the Chase Manhattan Bank, 1 Chase Manhattan
Plaza, New York, New York 10081 [*], or such other account of which
AOL shall give ICP written notice.
4. ADVERTISING AND MERCHANDISING
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4.1 AOL Network Advertising Inventory. AOL owns all right, title and
interest in and to the advertising and promotional spaces within the
AOL Network including, without limitation, the AOL Frames and shall
have the right to all revenues therefrom. The specific advertising
inventory within any AOL forms or pages, including such AOL Frames,
shall be as reasonably determined by AOL. AOL shall have the exclusive
right to sell AOL Advertisements on the Team Aggregation Page and the
Stars Aggregation Page. ICP must cooperate and facilitate AOL's
serving of advertisements sold by AOL. ICP must provide the necessary
technical support for AOL to serve such advertisements.
Notwithstanding the foregoing, AOL agrees not to place advertising
within any [*] that is activated by entering solely a Customized Site
or Customized Programming. AOL reserves the right to place advertising
within any [*] provided that any such advertising appearing on a frame
or [*] around the Customized Sites shall not be targeted specifically
toward the Customized Site. AOL hereby grants ICP the exclusive right
to license or sell AOL Advertisements on the other screens, subject to
AOL's approval for each AOL Advertisement, which approval shall not be
unreasonably withheld.
4.2 Advertising Policies. Any AOL Advertisements sold by ICP or its
agents shall be subject to AOL's then-standard advertising policies
which shall be made available, 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) subject to Section 5.2(b).
4.3 Advertising Revenues. AOL shall be entitled to [*] of Advertising
Revenues generated by the license or sale of AOL Advertisements on the
Team Aggregation Page and Stars Aggregation Page. ICP shall be
entitled to [*] of Advertising Revenues generated by the license or
sale of AOL Advertisements on the Other Pages.
4.4 Interactive Commerce. ICP is permitted to sell Product through the
commerce area on its Customized Site and/or Customized Programming.
ICP may sell "Licensed Sporting Goods," but
8
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
ICP is prohibited from "promoting" Licensed Sporting Goods anywhere on
the AOL Network; provided, however, that ICP shall be permitted sell
and promote Licensed Sporting Goods on the Customized Site and
Customized Programming. Any merchandising permitted hereunder shall be
subject to (i) the then-current requirements of AOL's merchant
certification program, (ii) AOL's standard terms and conditions
applicable to its interactive marketing partners, and (iii) receive
prior approval from AOL for all Product to be offered through the
Customized Site and/or Customized Programming, except for those pre-
approved Products listed in Exhibit H. ICP will take all reasonable
steps necessary to conform its promotion and sale of Products through
the Customized Site and Customized Programming to the then-existing
technologies identified by AOL which are optimized for the AOL Service
including, without limitation, any "quick checkout" tool which AOL may
implement to facilitate purchase of Products by AOL Members through
the Customized Site and Customized Programming. "Licensed Sporting
Goods" shall [*]. Memorabilia and collectibles are specifically
excluded from Licensed Sports Product.
5. CUSTOMIZED PROGRAMMING AND CUSTOMIZED SITE
------------------------------------------
5.1 Production; Performance. ICP shall optimize all Customized
Programming and the Customized Site for distribution hereunder
according to AOL specifications and guidelines (including, without
limitation, any HTML publishing guidelines) and the Operating
Standards set forth on Exhibit F attached hereto.
5.2 Customization. ICP shall customize all Customized Programming and the
Customized Site for AOL Members as follows:
(a) ICP shall customize and co-brand the Customized Site and
Customized Programming for distribution over the AOL Properties listed
in Exhibit A-1 by displaying on each page of the Customized Site
framing, branding for and links to the applicable AOL Property, and
other navigational and promotional spaces, each as described for each
such AOL Property on Exhibit A. In addition, on each page of the
Customized Site linked to from a permanent placement on a main
department screen of AOL.com or Netscape Netcenter, ICP shall display
a C-frame (i.e., side navigation/menu bars, headers and footers),
branding for and links to such AOL Property, and other navigational
and promotional spaces, each in accordance with AOL's standards for
such AOL Property. ICP shall make any changes to the customization
and/or co-branding of the Customized Site to conform to the standard
requirements of any AOL Property or otherwise requested by AOL during
the Term; provided that any such change shall not increase the portion
of the Customized Site that is covered by such framing by more than
10% over the portion covered by the framing shown on Exhibit A for
such AOL Property or the standard C-frame for such AOL Property as of
the Effective Date, as applicable.
(b) ICP shall ensure that AOL Members accessing the Customized Site
and/or Customized Programming or linking to any ICP Interactive Site
from the Customized Site or Customized Programming do not receive
advertisements, promotions or links (i) for any entity reasonably
construed to be in competition with AOL or the applicable AOL
Property, (ii) in a category in which AOL or the applicable AOL
Property has an exclusive or other preferential relationship (but this
limitation only applies to the Team Aggregation Page, Team Pages,
Stars
9
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
Aggregation Page, and Stars Page of the Customized Site and Customized
Programming), or (iii) otherwise in violation of the applicable AOL
Property's then-standard advertising policies. ICP shall ensure that
all Advertisements sold by ICP or its agents comply with all
applicable federal, state and local laws and regulations.
(c) Within the Customized Site, ICP shall use and/or feature solely
AOL's tools and technology for the following utilities and
functionality: instant messaging, chat, personalized news service,
calendaring (including "click-to-add event" functionality associated
therewith), web page community services, message boards, and
commerce/content aggregation services (e.g., Shop@AOL and local
content) ("AOL Tools"). If any such AOL Tool is not made available for
use on the Customized Site within a reasonable time upon ICP's
request, ICP shall be permitted to utilize on the Customized Site
similar tools and technology provided by a third party, provided that
such tools and technology are not branded by such third party and no
links or promotions for such third party appear on the Customized Site
and, provided, further that ICP will convert such tools and technology
over to the corresponding AOL Tool once such AOL Tool is made
available. In addition, the Customized Site shall not (x) provide or
promote any email service, or (y) use or feature the tools or
technology of any Interactive Service other than AOL.
(d) Within the AOL Service, ICP shall host the Team Aggregation Page
and Stars Aggregation Page of the Customized Programming under a
domain name co-branded with the applicable AOL Property as follows:
athletedirect.aol.com and all other pages within the Customized Site
will have domain names with applicable ICP Property extension such as
aol.athletedirect.com or yankees.aol.broadbandsports.com. Within all
other AOL Properties, ICP shall host the Team Aggregation Page, the
Team Page, the Stars Aggregation Page and the Stars Page under a
domain name co-branded with the applicable AOLProperty as follows:
athletedirect.netscape.com and all other pages within the Customized
Site may have domain names such as netscape.athletedirect.com. AOL
will use commercially reasonable efforts to have [*] for traffic on
the Team Pages within the AOL Service so long as such pages remain in
Rainman format. With respect to traffic on any other pages relating to
the Customized Site or Customized Programming which appear on an AOL
URL, AOL will use commercially reasonable efforts, including by
providing any necessary [*], to help ICP [*]. For pages appearing on
an ICP URL, AOL will use commercially reasonable efforts, including
[*], to help ICP receive [*].
5.3 Links on Customized Programming. The Parties will work together on
mutually acceptable links (including links back to AOL) within the
Customized Site and Customized Programming in order to create a robust
and engaging AOL member experience and the Customized Site and
Customized Programming shall not contain any pointers or links to any
other area on or outside the AOL Network without AOL's prior written
consent, other than (i) standard advertising that otherwise complies
with this Agreement and (ii) as expressly described on Exhibit A. ICP
may designate a "link" to the Customized Site and/or Customized
Programming as provided for herein. ICP shall take reasonable efforts
to ensure that AOL traffic is generally either kept within the
Customized Site or Customized Programming or channeled back into the
AOL Network and ICP shall ensure that the Customized Site or
Customized Programming contain no permanent or semi-permanent links
for third party Content, nor any rotational links for aggregated
Content within the same Content category or channel as ICP, except as
specifically set forth in the Programming Plan. To the extent that AOL
notifies ICP in writing that, in AOL's reasonable judgment, links from
the Customized Site or Customized Programming cause an excessive
amount of AOL traffic to be diverted outside of such Customized
Programming or Customized Site and the AOL Network in a manner that
has a detrimental effect on the traffic flow of the AOL
10
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
audience, then ICP shall immediately reduce the number of links out of
the Customized Programming and Customized Site. In the event that ICP
cannot or does not so limit diverted traffic from the Customized
Programming or Customized Site within thirty (30) days (or 10 days for
repeated violations) of receiving written notice from AOL regarding
such diverted traffic, AOL reserves the right to terminate such links
from the AOL Network to the Customized Programming Customized Site.
5.4 Review. ICP shall allow appropriate AOL personnel to have reasonable
access to all Customized Programming from time to time for the purpose
of reviewing such sites to determine compliance with the provisions of
this Section 5.
6. TERM, TERMINATION, PRESS RELEASES.
---------------------------------
6.1. Term. Unless earlier terminated as set forth herein, the initial term
of this Agreement shall commence on the Effective Date and expire
thirty-six (36) months from the Effective Date. AOL shall have the
right to extend this Agreement for two (2) successive one (1) year
periods (each, an "Extension Term") on the same terms and conditions
contained herein except that in lieu of the Carriage Fee in Section
1.4, ICP shall pay AOL at the Renewal Rate; provided that ICP has
generated Transaction Revenues and Advertising Revenues combined
totaling at least [*] during the initial term of this Agreement. In
the event that ICP has not generated such revenues during the initial
term of this Agreement, AOL may send ICP a notice of renewal and ICP
has the right to elect to pay either the Renewal Rate or the "Revenue
Share" payment option. The Revenue Share payment option shall mean
that ICP shall pay AOL fifty percent (50%) of Advertising Revenues and
a [*] percentage of Transaction Revenues which the Parties must
negotiate in good faith to [*] of net Transaction Revenues (i.e.,
gross revenues minus cost of goods sold [*] attributable to this
Agreement). The Impressions Target in a Extension Term shall equal
[*]. AOL shall exercise its option to extend this Agreement by
providing ICP with written notice of such election no later than [*]
prior to the expiration of the initial term or the then-current
Extension Term, as the case may be. Upon the expiration or earlier
termination of this Agreement, AOL may, at its discretion, continue to
promote one or more "pointers" or links from the AOL Network to an ICP
Interactive Site and continue to use ICP's trade names, trade marks
and service marks in connection therewith (collectively, a "Continued
Link").
6.2 Termination for Breach. Either Party may terminate this Agreement at
any time in the event of a material breach by the other Party which
remains uncured after thirty (30) days written notice thereof;
provided, however, that AOL will not be required to provide notice to
ICP in connection with ICP's failure to make any payment required
under Section 1.4, and the cure period with respect to any scheduled
payment shall be fifteen (15) days from the date such payment is due.
6.3 Termination for Bankruptcy/Insolvency or Changes in Business. Either
Party may terminate this Agreement immediately following written
notice to the other Party if the other Party (i) ceases to do business
in the normal course, (ii) becomes or is declared insolvent or
bankrupt, (iii) is the subject of any proceeding related to its
liquidation or insolvency (whether voluntary or involuntary) which is
not dismissed within ninety (90) calendar days or (iv) makes an
assignment for the benefit of creditors.
6.4 Press Releases. Each Party will submit to the other Party, for its
prior written approval, which will not be unreasonably withheld or
delayed, any press release or any other public statement ("Press
Release") regarding the transactions contemplated hereunder.
Notwithstanding the foregoing, either Party may issue Press Releases
and other disclosures as required by law, rule, regulation or court
order or as reasonably advised by legal counsel without the consent of
the other Party and in such event, the disclosing Party will provide
at least five (5) business days prior
11
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
written notice of such disclosure. The failure to obtain the prior
written approval of the other Party shall be deemed a material breach
of this Agreement. Because it would be difficult to precisely
ascertain the extent of the injury caused to the non-breaching Party,
in the event of such material breach, the non-breaching Party may
elect either to terminate this Agreement immediately upon notice to
the other Party. AOL hereby agrees that there will be a press release
announcing this Agreement pursuant to this provision and AOL shall
work with ICP in good faith to issue a timely release.
7. TERMS AND CONDITIONS. The terms and conditions set forth on the Exhibits
--------------------
attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
AMERICA ONLINE, INC. BROAD BAND SPORTS, INC.
By: /s/ David M. Colburn By: /s/ Richard Nanula
--------------------------------- ------------------------------
Print Name: David M. Colburn Print Name: Richard Nanula
------------------------- ----------------------
Title: President - Business Affairs Title: Chairman & CEO
------------------------------ ----------------------------
Date: 3/15/00 Date: 3/15/00
------------------------------- -----------------------------
Tax ID/EIN#: 95-4673805
----------------------
12
<PAGE>
EXHIBIT A
---------
Exhibit A-1: Carriage Plan
<CAPTION>
Brand/ Screen/Web Impressions Placements Permanent Branded (Y/N) Partner Content
Channel Center/Strip Guaranteed/
Trackable (Y/N)
====================================================================================================================================
AOL
Service
Sports Main Y Integrated Placement Y Y Athlete Page
Aggregate
Sports Scoreboards - Y Editorial Link (3) Y Y Integrated Commerce
Main* link
Sports Scoreboards - Y Editorial Link (2) Y Y Integrated Commerce
Sub-Level* link
Sports Pro Football, Y Promotional Link Y Y Athlete Pages
College Football, managed by Athlete
Pro Basketball, Direct
College
Basketball, Pro
Hockey, Pro
Baseball, Soccer
Sports Pro Football,
College Football, Y Promotional Link Y Y Specific Individual
Pro Basketball, Team Pages
College
Basketball, Pro
Hockey, Pro
Baseball, Soccer,
Auto Racing,
Golf
Sports Extreme Sports - Y Content Block Y Y Extreme Seasonal
Main Sports - e.g. -
Snowboarding and
Skateboarding
Sports Scoreboards Y Advertising No - Y Commerce area of
Weekends Partner site
Only
Sports Run of Channel Y Advertising No Y Commerce area of
Partner site
====================================================================================================================================
AOL.com
====================================================================================================================================
Sports Main Y Content Block Y Y Promotional Content
- Main co-brand area
Sports Pro Football, Y Promotional Link Y Y Athlete Pages
College Football, managed by Athlete
Pro Basketball, College Direct
Basketball, Pro Hockey,
Pro Baseball,
Soccer
13
<PAGE>
Sports Pro Football, College Y Promotional Link Y Y Specific Individual
Football, Pro Team Pages
Basketball, College
Basketball, Pro
Hockey, Pro Baseball,
Soccer, Auto Racing,
Golf
Sports Extreme Sports Y Department Pages Y Y Extreme Seasonal
Sports - e.g. -
Snowboarding and
Skateboarding
Sports Scoreboards* Y Editorial Links Y Y Integrated Commerce
Link
CompuServe
====================================================================================================================================
Sports Main Y Content Block Y Y Promotional Content
- Main co-brand area
Sports Pro Football, Y Promotional Link Y Y Athlete Pages
College Football, managed by Athlete
Pro Basketball, Direct
College Basketball,
Pro Hockey, Pro
Baseball, Soccer
Sports Pro Football, College Y Promotional Link Y Y Specific Individual
Football, Pro Team Pages
Basketball, College
Basketball, Pro
Hockey, Pro
Baseball, Soccer,
Auto Racing,
Golf
Sports Extreme Sports Y Department Pages Y Y Extreme Seasonal
Sports - e.g. -
Snowboarding and
Skateboarding
Sports Scoreboards* Y Editorial Links Y Y Integrated Commerce
Link
------------------------------------------------------------------------------------------------------------------------------------
AOL
Australia,
Brazil,
Canada,
UK
Sports Anywhere in N Text Link(s) Y Y Link to country
Channel specific area
developed by ICP
Netscape
====================================================================================================================================
Sports Main Y Content Block Y Y Promotional Content
- Main co-brand area
14
<PAGE>
Sports Pro Football, Y Department Pages Y Y Athlete Pages
College Football, managed by Athlete
Pro Basketball, Direct
College Basketball,
Pro Hockey, Pro
Baseball, Soccer
Sports Pro Football, Y Department Pages Y Y Specific Individual
College Football, Team Pages
Pro Basketball,
College Basketball,
Pro Hockey, Pro
Baseball, Soccer,
Auto Racing,
Golf
Sports Extreme Sports Y Department Pages Y Y Extreme Seasonal
Sports - e.g. -
Snowboarding and
Skateboarding
Sports Scoreboards* Y Editorial Links Y Y Integrated Commerce
Link
ICQ
====================================================================================================================================
Sports Main Y Text Promotion Permanent Y ICQ Sports Fan
Department
Sports Fans Y Feature Permanent Y Broadband Sports
Hosted Content
Sports Fans Y Secondary Feature Rotating Y Broadband Sports
Hosted Content
Sports Fans Y Top 5's Rotating Y Broadband Sports
Hosted Content
Sports Fans Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Baseball Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Basketball Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Tennis Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports US Football Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Football (Soccer) Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Other Sports Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Rugby Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Cricket Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Golf Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Hockey Y Text Promotion Permanent Y Broadband Sports
Hosted Content
Sports Extreme Y Text Promotion Rotating Y Broadband Sports
Hosted Content
Sports Scoreboards* Y Text Promotion Permanent Y Broadband Sports
Hosted Content
====================================================================================================================================
15
<PAGE>
* Within the AOL Service, each Scoreboard Screen will contain a number of ICP
designated links equal to at least sixty (60) percent of the total Promotional
Links on the page; provided that, in no instance will the number of ICP
designated links on the main AOL Scoreboard Screen be less than three (3). At
least one (1) ICP designated link will be accompanied by a photo. A minimum of
one (1) ICP designated link will contain a graphical icon and two (2) lines of
text. A minimum of one (1) ICP designated link will be a text link. Each AOL
Service sub-Scoreboard Screen will contain a minimum of two (2) ICP designated
links.
AOL will provide similar relative level of promotion (but not necessarily number
of links) on the Scoreboards of other Covered Properties as reasonably
determined by AOL taking into account design and "look and feel" of such other
Scoreboards.
16
<PAGE>
[GRAPHIC OF AOL/SPORTS WEB SITE]
17
<PAGE>
EXHIBIT B -- DEFINITIONS
-------------------------
DEFINITIONS. The following definitions shall apply to this Agreement:
Advertisements. Promotions, advertisements, links, pointers and similar
services or rights.
Advertising Revenues. Aggregate amounts collected plus the fair market value of
any other compensation received (such as barter advertising) by ICP or ICP's
agents, as the case may be, arising from the license or sale of AOL
Advertisements, less applicable Advertising Sales Commissions; provided that, in
order to ensure that AOL receives fair value in connection with AOL
Advertisements, ICP shall be deemed to have received no less than the
Advertising Minimum in instances when ICP makes an AOL Advertisement available
to a third party at a cost below the Advertising Minimum.
Affiliate. Any agent, distributor or franchisee of AOL, or an entity that,
directly or indirectly, controls, is controlled by, or is under common control
with AOL, including any entity in which AOL holds, directly or indirectly, at
least a nineteen percent (19%) equity interest.
AOL Advertisements. Any promotion, advertisement, link pointer, sponsorship or
similar service or right on or through the Customized Site or Customized
Programming.
AOL.com. AOL's primary Internet-based Interactive Site marketed under the
"AOL.COM/sm/" brand, specifically excluding (a) the AOL Service, (b) any
international versions of such site, (c) CompuServe.com, Netscape Netcenter, any
other CompuServe or Netscape products or services or interactive sites, (d)
"ICQ/sm/," "AOL Search," "AOL Instant Messenger/sm/," "AOL NetMail/sm/" or any
similar independent product or service offered by or through such site or any
other AOL Interactive Site, (e) any programming or Content area offered by or
through such site over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (f) any programming or Content area offered by or
through the U.S. version of the America Online brand service which was operated,
maintained or controlled by the former AOL Studios division, (g) any yellow
pages, white pages, classifieds or other search, directory or review services or
Content offered by or through such site or any other AOL Interactive Site, (h)
any property, feature, product or service which AOL or its affiliates may
acquire subsequent to the Effective Date and (i) any other version of an America
Online Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the "AOL.COM" brand, by virtue of
its branding, distribution, functionality, Content or services, including,
without limitation, any co-branded versions and any version distributed through
any broadband distribution platform or through any platform or device other than
a desktop personal computer.
AOL Service. The standard narrow-band U.S. version of the America Online brand
service, specifically excluding (a) AOL.com/sm/ and 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) Netscape Netcenter(TM) and any other Netscape products or
services, (e) "ICQ/sm/," "AOL NetFind/sm/," "AOL Instant Messenger/sm/,"
"Digital City/sm/," "AOL NetMail/sm/," "Real Fans/sm/", "Love@AOL/sm/",
"Entertainment Asylum/sm/," "AOL Hometown/sm/" or any similar independent
product, service or property which may be offered by, through or with the U.S.
version of the America Online brand service, (f) 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), (g) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through the U.S. version
of the America Online brand service, (h) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective Date
and (i) any other version of an America Online service which is materially
different from the standard narrow-band U.S. version of the America Online brand
service, by virtue of its branding, distribution, functionality, Content or
services, including, without limitation, any co-branded version of the service
and any version distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer.
AOL Presence. Any AOL trademark or logo, headline, word or picture and/or any
other Content which describes or promotes AOL.
AOL Property. Any product, service or property owned, operated, marketed,
distributed, or authorized to be distributed by or through AOL or its
Affiliates, including, without limitation, the AOL Service, AOL.com, and AOL
Hometown.
AOL Look and Feel. The elements of graphics, design, organization,
presentation, layout, user interface, navigation, trade dress and stylistic
convention (including the digital implementations thereof) within the AOL
Network and the total appearance and impression substantially formed by the
combination, coordination and interaction of these elements.
AOL Member(s). Any user of the AOL Network, including authorized users
(including any sub-accounts under an authorized master account) of the AOL
Service and/or the CompuServe Service.
AOL Network. (i) The AOL Service, AOL.com, ICQ, and (ii) any other product,
service or property owned, operated, distributed or authorized to be distributed
by or through AOL or its Affiliates worldwide (and including those products,
services and properties that are excluded from the definitions of the AOL
Service, AOL.com or any other AOL Property). It is understood and agreed that
the rights of ICP relate solely to particular AOL Properties as expressly set
forth in this Agreement and not generally to the AOL Network.
AOL Purchaser. (i) Any person or entity who enters the Customized Site or the
Customized Programming from the AOL Network including, without limitation, from
any third party area therein (to the extent entry from such third party area is
traceable through both Parties' commercially reasonable efforts), and generates
Transaction Revenues (regardless of whether such person or entity provides an e-
mail address during registration or entrance to the Customized Site which
includes a domain other than an "AOL.com" domain); and (ii) any other person or
entity who, when purchasing a product, good or service through a Linked ICP
Interactive Site, provides an AOL.com domain name or a CompuServe.com domain
name as part of such person or entity's e-mail address and provided that any
person or entity who has previously satisfied the definition of AOL Purchaser
will remain an AOL Purchaser, and any subsequent purchases by such person or
entity (e.g., as a result of e-mail solicitations or any off-line means for
receiving orders requiring purchasers to reference a specific promotional
identifier or tracking code) will also give rise to Transaction Revenues
hereunder (and will not be conditioned on the person or entity's satisfaction of
clauses (i) or (ii) above).
Change of Control. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
a party or (b) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
CompuServe Service. The standard HTML version of the narrow-band U.S. version
of the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe), (b) any web-based service including
"compuserve.com", "cserve.com" and "cs.com", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe affiliates or any
similar "sub-service," (d) any programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g., third-
party Content areas), (e) any yellow pages, white pages, classifieds or other
search, directory or review services or Content (f) any co-branded or private
label branded version of the U.S. version of the CompuServe brand service, (g)
any version of the U.S. version of the CompuServe brand service which offers
Content, distribution, services or functionality materially different from the
Content, distribution, services or functionality associated with the standard,
narrow-band U.S. version of the CompuServe brand service, including, without
limitation, any version of such service distributed through any platform or
device other than a desktop personal computer, (h) any property, feature,
product or service which CompuServe or its affiliates may acquire subsequent to
the Effective Date, (i) the America Online brand service and any independent
product or service which may be offered by, through or with the U.S. version of
the America Online brand service and (j) the HMI versions of the CompuServe
brand service.
18
<PAGE>
Confidential Information. Any information relating to or disclosed in the
course of this Agreement, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data. "Confidential Information" shall not include information
(a) already lawfully known to or independently developed by the receiving Party,
(b) disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
Content. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, URLs, keywords and other navigational
elements, links, pointers, technology and software.
Covered Property. AOL Service, AOL.com, [*], ICQ.com, and CompuServe.
Customized Programming. Any (a) area within the AOL Network or outside the AOL
Network but exclusively available to AOL Members, which area is developed,
programmed, and/or managed by ICP, in whole or in part, pursuant to this
Agreement and all Content thereon (including, without limitation, message
boards, chat and other AOL Member-supplied content areas contained therein)
including, without limitation, Team Aggregation Page, Team Page, Stars
Aggregation Page, Stars Page and any co-branded page, but excluding the
Customized Site and (b) Content provided to AOL by ICP pursuant to this
Agreement for distribution on or through the AOL Network other than on the
Customized Site.
Customized Site. Collectively, each version of the Primary Site that is
customized for distribution through the AOL Network in accordance with this
Agreement.
Department Screens. The following eleven departmental main screens of the AOL
Covered Property Sports Channel: Pro Football, College Football, Pro Basketball,
College Basketball, Extreme Sports, Hockey, Baseball, Golf, Soccer, Auto Racing
and Tennis (or successor screens thereto).
Digital City. The standard, narrow-band U.S. version of Digital City's local
content offerings marketed under the Digital City brand name, specifically
excluding (a) the AOL Service, AOL.com or any other AOL Interactive Site, (b)
any international versions of such local content offerings, (c) the CompuServe
brand service and any other CompuServe products or services (d) "Driveway,"
"ICQ," "AOL Search," "AOL Instant Messenger," "Digital City," "AOL NetMail,"
"Electra", "Thrive", "Real Fans", "Love@AOL", "Entertainment Asylum," "AOL
Hometown," "My News" or any similar independent product, service or property
which may be offered by, through or with the standard narrow band version of
Digital City's local content offerings, (e) any programming or Content area
offered by or through such local content offerings 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 such local content offerings, (g) any
property, feature, product or service which AOL or its affiliates may acquire
subsequent to the Effective Date, (h) any other version of a Digital City local
content offering which is materially different from the narrow-band U.S. version
of Digital City's local content offerings marketed under the Digital City brand
name, by virtue of its branding, distribution, functionality, Content or
services, including, without limitation, any co-branded version of the offerings
and any version distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer, and (i)
Digital City- branded offerings in any local area where such offerings are not
owned or operationally controlled by AOL, Inc. or DCI (e.g., Chicago, Orlando,
South Florida, and Hampton Roads).
Keyword/TM/ Search Terms. (a) The Keyword online search terms made available on
the AOL Service, combining AOL's Keyword online search modifier with a term or
phrase specifically related to ICP (and determined in accordance with the terms
of this Agreement) and (b) the Go Word online search terms made available on the
CompuServe Service, combining CompuServe's Go Word online search modifier with a
term or phrase specifically related to ICP (and determined in accordance with
the terms of this Agreement).
ICP Stars Competitors. Fan Link, Athlete Now, Rivals.com and Big Pros (and
their majority-owned subsidiaries provided that such subsidiaries would
otherwise qualify under this definition), provided that Fan Link, Athlete Now
and Big Pros shall no longer be considered ICP Stars Competitors if their page
views from their Stars Aggregation Areas [*] of their annual page views and
provided further that Rivals.com shall no longer be considered ICP Stars
Competitors if its page views from its Stars Aggregation Area and its Team
Aggregation Area combined [*] of its annual page views. In the event of an
acquisition of any of the foregoing entities, the annual gross revenues test
shall apply only to the above mentioned entities as stand-alone entities
provided they continue to operate as such brands (but the ICP Stars Competitor
definition shall never apply to a parent of the above entities unless the parent
entities revenues from Stars Aggregation Areas is [*] of its total revenues).
ICP shall have the right to add four additional ICP Stars Competitors upon
reasonable written notice to AOL if such entity generates [*] of their total
page views from Stars Aggregation Areas. Any prior existing relationships
between AOL and such a new ICP Stars Competitor shall be grandfathered and
excluded from any applicable restrictions.
ICP Interactive Site. Any interactive site or area (other than Customized
Programming), including any mirrored site or area, which is managed, maintained
or owned by ICP or its agents or to which ICP provides and/or licenses
information, content or other materials, including, by way of example and
without limitation, (i) an ICP site on the World Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product such as
the Pointcast Network or interactive environment such as Microsoft's proposed
Active Desktop or interactive television service such as WebTV.
ICP Presence. Any (a) ICP trademark or logo, (b) headline or picture from ICP
Content, (c) teaser, icon, or link to the Customized Site or Customized
Programming and/or (d) other Content which originates from, describes or
promotes ICP or ICP's Content. This does not include AOL navigational links
(i.e., links to " teams", "stars" or the names of such teams or stars).
ICQ.com. ICQ's primary Internet-based English language Interactive Site
marketed under the "ICQ.com" brand, specifically excluding (a) the ICQ Service,
(b) any international / non-English language versions of such site, (c) "ICQ
It!" or any other independent product or service offered by or through such site
or any other ICQ Interactive Site, (d) any programming or Content area offered
by or through such site over which ICQ does not exercise complete operational
control (including, without limitation, Content areas controlled by other
parties and user-created Content areas), (e) any yellow pages, white pages,
classifieds or other search, directory or review services or Content offered by
or through such site or any other ICQ Interactive Site, (f) any property,
feature, product or service which ICQ or its affiliates may acquire subsequent
to the Effective Date and (g) any other version of an ICQ Interactive Site which
is materially different from ICQ's primary Internet-based English language
Interactive Site marketed under the "ICQ.com" brand, by virtue of its branding,
distribution, functionality, Content and services, including, without
limitation, any co-branded versions and any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer
Impression. User exposure to an ICP Presence, as such exposure may be
reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols; provided that on scoreboards multiple Impressions
on a single page shall count as one Impression.
Interactive Service. An entity offering one or more of the following: (i)
online or Internet connectivity services (e.g., an Internet service provider);
(ii) an interactive site or service featuring a broad selection of aggregated
third party interactive content (or navigation thereto) (e.g., an online service
or search and directory service) and/or marketing a broad selection of products
and/or services across multiple interactive commerce categories; (iii) a
persistent desktop client; or (iv) communications software capable of serving as
the principal means through which a user creates, sends or receives electronic
mail or real time or "instant" online messages (whether by telephone, computer
or other means).
Linked Interactive Site. Any site or area outside of the AOL Network which is
linked to Customized Programming (through a "pointer" or similar link) subject
to approval by AOL 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.
Licensed Sports Product. A sports-related Product which requires a license from
a sports league, team, governing body or individual athlete in order to sell
such Product.
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Licensed Content. All Content offered through [*] pursuant to this Agreement or
otherwise provided by or on behalf of ICP or its agents in connection herewith
(e.g., offline promotional content or online Content for distribution through
the AOL Network), including without limitation all Customized Programming.
Main Screen. The primary or first screen of a particular area or channel.
Member Page. Any web page created by an AOL Member through AOL Hometown and
using the community tools available therein.
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.
Netscape Netcenter. Netscape Communications Corporation's primary Internet-
based Interactive Site marketed under the "Netscape Netcenter/sm/" brand,
specifically excluding (a) the AOL Service and the CompuServe Service, (b)
AOL.com and CompuServe.com, (c) any international versions of such site, (d)
"ICQ," "AOLSearch," "AOL Instant Messenger," "AOL NetMail," "AOL Hometown," "My
News," "Digital City," or any similar independent product or service offered by
or through such site or any other AOL Interactive Site, (e) any programming or
Content area offered by or through such site over which AOL does not exercise
complete operational control (including, without limitation, Content areas
controlled by other parties and member-created Content areas), (f) any
programming or Content area offered by or through the U.S. version of the
America Online brand service which was operated, maintained or controlled by the
former AOL Studios division (e.g., Electra), (g) any yellow pages, white pages,
classifieds or other search, directory or review services or Content offered by
or through such site or any other AOL Interactive Site, (h) any property,
feature, product or service which AOL or its affiliates may acquire subsequent
to the Effective Date and (i) any other version of an AOL or Netscape
Communications Corporation Interactive Site which is materially different from
Netscape Communications Corporation's primary Internet-based Interactive Site
marketed under the "Netscape Netcenter" brand, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any co-branded versions and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer (e.g. Custom NetCenters built specifically for third parties).
Other Pages. All pages directly linked to from a Team Aggregation Page or Stars
Aggregation Page.
Permanent. Shall mean a placement within a screen on the AOL Network that is
continuously visible 24 hours per day, 7 days a week, 52 weeks a year.
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 the
Agreement. ICP shall be solely responsible for the Content of the Premium
Information Products.
Primary Site. The Internet site and Content currently located at
www.athletedirect.com, www.psx.com, www.csx.com , www.rotonews.com and all
derivative URLs which are (i) managed, maintained or owned by ICP or its agents
or (ii) to which ICP licenses information, content or other materials.
Product. Any product, good or service which ICP (or others acting on its behalf
or as distributors) offers, sells, provides, distributes or licenses to AOL
Purchaser directly or indirectly through (i) the Customized Site (including
through any Interactive Site linked thereto) or Customized Programming
(including any Linked Interactive Site), (ii) any other electronic means
directed at AOL Purchaser (e.g., e-mail offers), or (iii) an "offline" means
(e.g., toll-free number) for receiving orders related to specific offers within
the Customized Site or Customized Programming requiring purchasers to reference
a specific promotional identifier or tracking code, including, without
limitation, products sold through surcharged downloads (to the extent expressly
permitted hereunder).
Promotional Links. Any link except for banner ads, editorial, navigational or
other similar links.
Renewal Rate. Equals $12,500,000.00 per Extension Term to be paid as follows:
(1) a total cash payment of $5,000,000.00 to be paid quarterly with two quarters
being paid up front on or before the first day of the Extension Term and under
the same terms and conditions as set forth in Section 1.4 and (2) $7,500,00.00
in ICP In-Kind Commitments to be distributed evenly during the Extension Term
and otherwise subject to Section 1.4.2.
Restricted Screens. Shall mean the Customized Site, Team Aggregation Page, Team
Page, Stars Aggregation Page, Stars Page and Department Screens; the Scoreboard
Screens and Sub-Scoreboard Screens; the Main Screens of the Sports Channels of
each of the AOL Service, AOL.com, the CompuServe Service, Netscape Netcenter,
ICQ.com; all screens that are under AOL's complete operational control within
each of the Grandstand Area and Fantasy Area of the AOL Service Sports Channel;
and all screens that are under AOL's complete operational control within the
Sports News Areas of the Sports Channels of each of the AOL Service, AOL.com,
the CompuServe Service, Netscape Netcenter, orICQ.com. AOL hereby represents
that the Grandstand Area, Fantasy Area and the Sports News Area of the Sports
Channel all within the AOL Service are under AOL's complete operational control
as of the signing of this Agreement. AOL does not represent or warrant that
such areas will remain under its complete operational control after the signing
of this Agreement.
Scoreboards Screen. Shall mean the main scoreboard screen corresponding to each
Department Screen.
Sub-Scoreboard Screen. The screen(s) one or more click under the Scoreboard
screen which contains the same characteristics of the Scoreboard Screen.
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.
Stars Page. The Page devoted to content relating to an individual athlete as
set forth in Exhibit A and directly linked to from the Stars Aggregation Page.
Stars Aggregation Area. An athlete area which is produced by a company that
produces athlete programming for at least 8 athletes. Athlete Programming shall
mean interactive content (including athlete websites) produced by or under
license from an athlete in which an athlete has material financial interest
excluding, without limitation, any content produced for distribution through any
other medium, any content created independent of the athlete or any other
content created around athlete endorsement, promotional, league, team or similar
relationships.
Stars Aggregation Page. The area in the AOL Network linked directly from an
AOL-based permanent promotion and/or used as a navigational page that is
designed as the premier interactive and online home for mutually and reasonable
agreed-upon nationally (in some cases internationally) recognized major
professional athletes in the following sports categories: NFL, NBA, NHL, MLB,
auto racing ("Nascar") and soccer ("MLS") and other mutually agreed upon sports
categories.
Term. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of this Agreement.
Team Aggregated Area. An area containing aggregated content or links to
aggregated content from all or substantially all NFL, NHL, NBA, MLB, MLS,NASCAR,
NCAA Football, or NCAA Basketball teams.
Team Aggregation Page. The AOL page that contains all of the team listings for
all categories of professional, college or any other category including teams
and that is linked directly from an AOL-based permanent promotion and/or used as
a navigational page to team listings.
Team Page. The page devoted to content relating to a specific team as set forth
in Exhibit A and directly linked to from the Team Aggregation Page.
Transaction Revenues. Aggregate amounts paid by AOL Purchasers in connection
with the sale, licensing, distribution or provision of any Products, including,
in each case, handling, shipping, service charges, and excluding, in each case,
(a) amounts collected for sales or use taxes or duties and (b) credits and
chargebacks for returned or canceled goods or services, but not excluding cost
of goods sold or any similar cost.
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<PAGE>
EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
------------------------------------------------
I. AOL NETWORK
Content. ICP represents and warrants that all Content contained within the
Customized Site and Customized Programming and all Licensed Content (i) does and
will conform to AOL's applicable Terms of Service, the terms of this Agreement
and any other standard, written policy of AOL and any applicable AOL Property
(including without limitation AOL's kids policies to the extent applicable),
(ii) does not and will not infringe on or violate any copyright, trademark, U.S.
patent, rights of publicity, moral rights or any other third party right,
including without limitation, any music performance or other music related
rights, and (iii) does not and will not contain any Content which violates any
applicable law or regulation ((i), (ii) and (iii) collectively, the "Rules").
In the event that AOL notifies ICP in writing that any such Content, as
reasonably determined by AOL, does not comply or adhere to the Rules, then ICP
shall use its best efforts to block access by AOL Members to such Content. In
the event that ICP cannot, through its best efforts, block access by AOL Members
to such Content in question, then ICP shall provide AOL prompt written notice of
such fact. AOL may then, at its option, either (i) restrict access from the AOL
Network to the Content in question using technology available to AOL or (ii) in
the event access cannot be restricted, direct ICP to remove any such Content.
ICP will cooperate with AOL's reasonable requests to the extent AOL elects to
implement any such access restrictions.
AOL Network Distribution. The distribution, placements and/or promotions
described in this Agreement or otherwise provided to ICP by AOL shall be used by
ICP solely for its own benefit, will link to and promote solely the Licensed
Content within the Customized Site or Customized Programming expressly described
on Exhibit A and will not be resold, traded, exchanged, bartered, brokered or
otherwise offered or transferred to any third party or contain any branding
other than ICP's branding. Further, the Content of all such distribution,
placements and promotions shall be subject to AOL's policies relating to
advertising and promotion, including those relating to AOL's exclusivity
commitments and other contractual preferences to third parties as set forth in
Section 4.and Section 5.
Changes to AOL Properties. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of the
AOLNetwork at any time, including without limitation, by adding or deleting
channels, subchannels and/or screens and/or by outsourcing to a third party the
programming responsibility for any channel, subchannel, screen or portion
thereof. If such redesign or modification substantially modifies the nature of
the distribution provided under this Agreement in a material adverse fashion, or
if AOL is otherwise unable to deliver any particular Promotion, AOL will work
with ICP in good faith to provide ICP, as its sole remedy, with comparable
distribution [*].
Member Page. AOL will have no obligation with respect to the Content and
services available on or through any Member Page including, but not limited to,
any duty to review or monitor any such Content and services. AOL expressly
disclaims any liability to ICP for the Content and services contained in any
Member Page or any expense, claim, demand, costs, loss or damage arising out of
any use of the ICP-provided Content available from, without limitation, a
Community Center or the Customized Site. ICP agrees to release AOL and its
affiliates, including partners, directors, officers, employees and agents from
any and all claims, rights and recourses for such loss or damage.
Contests. ICP shall ensure that any contest, sweepstakes or similar promotion
conducted or promoted through the Customized Site and/or Customized Programming
(a "Contest") complies with all applicable laws and regulations. ICP shall
provide AOL with (i) at least thirty (30) days prior written notice of any
Contest and (ii) upon AOL's request, an opinion from ICP's counsel confirming
that the Contest complies with all applicable federal, state and local laws and
regulations.
Disclaimers. ICP agrees to include within the Customized Site and Customized
Programming a disclaimer (the specific form and substance to be mutually agreed
upon by the Parties) indicating that all Content (including any products and
services) is provided solely by ICP and not AOL, and any transactions are solely
between ICP and AOL Members using or purchasing such Content and AOL is not
responsible for any loss, expense or damage arising out of the Licensed Content
or services provided through the Customized Site or Customized Programming
(e.g., "In no event shall AOL nor any of its agents, employees, representatives
or affiliates be in any respect legally liable to you or any third party in
connection with any information or services contained herein and AOL makes no
warranty or guaranty as to the accuracy, completeness, correctness, timeliness,
or usefulness of any of the information contained herein"). ICP shall not in any
manner state or imply that AOL recommends or endorses ICP or its Content.
Insurance. At all times during the Term, ICP shall maintain an insurance policy
or policies adequate in amount to insure ICP against potential liability
associated with the Licensed Content. ICP shall include AOL as a named insured
party on such policy or policies. ICP shall provide AOL with a copy of such
policy or policies within thirty (30) days after the Effective Date, failing
which, in addition to all other available remedies, AOL shall be entitled to
delay the launch of the Licensed Content on the AOL Network (and reduce AOL's
promotional and Impressions obligations proportionately). ICP shall promptly
notify AOL of any material change in such policy or policies.
Rewards Programs. ICP shall not offer, provide, implement or otherwise make
available on the Customized Site or Customized Programming any third party
promotional programs or plans that are intended to provide customers with
rewards or benefits in exchange for, or on account of, their past or continued
loyalty to, or patronage or purchase of, the products or services of ICP or any
third party (e.g., a promotional program similar to a "frequent flier" program),
unless such promotional program or plan is provided exclusively through AOL's
"AOL Rewards" program, accessible on the AOL Service at Keyword: "AOL Rewards."
[*].
Navigation. In cases where an AOL Member performs a search for ICP through any
search or navigational tool or mechanism that is accessible or available through
the AOL Network (e.g., promotions, Keyword Search Terms, navigation bars or any
other promotions or navigational tools), AOL shall have the right to direct such
AOL Member to the Customized Site, or any other Linked ICP Interactive Site
determined by AOL in its reasonable discretion. ICP shall ensure that
navigation back to the AOL Network from the Customized Site (and from any other
Linked ICP Interactive Site linked to from the AOL Network), whether through a
particular pointer or link, the "back" button on an Internet browser, the
closing of an active window, or any other return mechanism, shall not be
interrupted by ICP through the use of any intermediate screen or other device
not specifically requested by the user, including without limitation through the
use of any html pop-up window or any other similar device.
AOL Look and Feel. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the Customized Site or Customized Programming (the "AOL Frames"). AOL
may, at its discretion, incorporate navigational icons, links and pointers or
other Content into such AOL Frames subject to Section 4.1.
Operations. AOL shall be entitled to require reasonable changes to the
Customized Site and Customized Programming to the extent such site will, in
AOL's good faith judgment, adversely affect technical operations of the AOL
Network.
Classifieds and Auctions. ICP shall not implement or promote any classifieds
listing features through Customized Programming or Customized Site without AOL's
prior written approval not to be unreasonably withheld. Such approval may be
conditioned upon, among other things, ICP's conformance with any then-applicable
service-wide technical or other standards related to online classifieds. ICP
shall not conduct any merchandising through the Customized Site or Customized
Programming through auctions or any method other than a direct sales format
without AOL's prior written consent with the exception of auctions from eBay.
Message Boards; Chat Rooms and Comparable Vehicles. Any Content submitted by
ICP or its agents within the AOL Network message boards, chat rooms or any
comparable vehicles will be subject to the license grant relating to submissions
to "public areas" set forth in the AOL Terms of Service. ICP acknowledges that
it has no rights or interest in AOL Member submissions to message boards, chat
rooms or any other vehicles through which AOL Members may make submissions
within the AOL Network. ICP will refrain from editing, deleting or altering,
without AOL's prior approval, any opinion expressed or submission made by an AOL
Member within the Customized Programming except in cases where ICP has a good
faith belief that the Content in question violates an applicable law,
regulation, third party right or the applicable AOL Property's Terms of Service.
Duty to Inform. ICP shall promptly inform AOL of any information related to the
Customized Site, Customized Programming or the Licensed Content which could
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<PAGE>
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 Customized Site, Customized Programming or the Licensed
Content by AOL Members or on request by AOL, and shall cooperate and assist AOL
in promptly answering the same. ICP shall have sole responsibility for customer
service (including, without limitation, order processing, billing, shipping,
etc.) and AOL shall have no responsibility with respect thereto. ICP shall
comply with all applicable requirements of any federal, state or local consumer
protection or disclosure law.
Statements through AOL Network. ICP shall not make, publish, or otherwise
communicate through the AOL Network any deleterious remarks concerning AOL or
its Affiliates, directors, officers, employees, or agents (including, without
limitation, AOL's business projects, business capabilities, performance of
duties and services, or financial position) which remarks are based on the
relationship established by this Agreement or information exchanged hereunder.
This section is not intended to limit good faith editorial statements made by
ICP based upon publicly available information, or information developed by ICP
independent of its relationship with AOL and its employees and agents.
Production Work. In the event that ICP requests any AOL production assistance,
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 work and (iii) the estimated development schedule for such
work. To the extent the Parties reach agreement regarding implementation of
agreed-upon Production Plan, such agreement shall be reflected in a separate
work order signed by the Parties. 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 Promotions, Customized Programming and the Customized Site
("Routine Services"), ICP will pay the then-standard fees charged by AOL for
such Routine Services.
Production Tools. AOL shall determine in its sole discretion, which of its
proprietary publishing tools (each a "Tool") shall be made available to ICP in
order to develop and implement the Licensed Content during the Term. ICP shall
be granted a nonexclusive license during the Term to use any such Tool, which
license shall be subject to: (i) ICP's compliance with all rules and regulations
relating to use of the Tools, as published from time to time by AOL, (ii) AOL's
right to withdraw or modify such license at any time, and (iii) ICP's express
recognition that AOL provides all Tools on an "as is" basis, without warranties
of any kind.
Training and Support. AOL shall make available to ICP standard AOL training and
support programs necessary to produce any AOL areas hereunder. 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).
Keywords. Any Keyword Search Terms to be directed to the Customized Site shall
be (i) subject to availability for use by ICP and (ii) limited to the
combination of the Keyword search modifier combined with a registered trademark
of ICP. AOL reserves the right to revoke at any time ICP's use of any Keyword
Search Terms which do not incorporate registered trademarks of ICP. ICP
acknowledges that its utilization of a Keyword Search Term will not create in
it, nor will it represent it has, any right, title or interest in or to such
Keyword Search Term, other than the right, title and interest ICP holds in ICP's
registered trademark independent of the Keyword Search Term. Without limiting
the generality of the foregoing, ICP will not: (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword Search Term;
or (b) use the Keyword Search Term, except for the purposes expressly required
or permitted under this Agreement. This Section shall survive the completion,
expiration, termination or cancellation of this Agreement.
Accounts. ICP shall be granted [*] 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 [*] 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 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.
II. TRADEMARKS
Trademark License. In designing and implementing any marketing, advertising, or
other promotional materials (expressly excluding Press Releases) related to this
Agreement and/or referencing the other Party and/or its trade names, trademarks
and service marks (the "Promotional Materials") and subject to the other
provisions contained herein, ICP shall be entitled to use the following trade
names, trademarks and service marks of AOL: the "America Online" brand service,
"AOL" service/software and AOL's triangle logo and, in connection therewith, ICP
shall comply with the AOL styleguide available at keyword: "style guide"; and
AOL and its Affiliates shall be entitled to use the trade names, trademarks and
service marks of ICP (collectively, together with the AOL marks listed above,
the "Marks"); provided that each Party: (i) does not create a unitary composite
mark involving a Mark of the other Party without the prior written approval of
such other Party and (ii) displays symbols and notices clearly and sufficiently
indicating the trademark status and ownership of the other Party's Marks in
accordance with applicable trademark law and practice. This Section shall
survive the completion, expiration, termination or cancellation of this
Agreement.
Rights. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the 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. Each Party will submit to the other Party, for its prior
written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials; provided, however, that after initial public announcement
of the business relationship between the Parties in accordance with the approval
and other requirements contained herein, either Party's subsequent factual
reference in Promotional Materials to the existence of a business relationship
between AOL and ICP, including, without limitation, the availability of the
Licensed Content through the AOL Network, or use of screen shots relating to the
distribution under this Agreement (so long as the AOL Network is clearly
identified as the source of such screen shots) for promotional purposes shall
not require the approval of the other Party. Once approved, the Promotional
Materials may be used by a Party and its affiliates for the purpose of promoting
the distribution of the Licensed Content through the AOL Network and reused for
such purpose until such approval is withdrawn with reasonable prior notice. In
the event such approval is withdrawn, existing inventories of Promotional
Materials may be depleted.
Infringement Proceedings. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
22
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; (iv) such Party's
Promotional Materials will neither infringe on any copyright, U.S. patent or any
other third party right nor violate any applicable law or regulation and (v)
such Party acknowledges that the other Party makes no representations,
warranties or agreements related to the subject matter hereof which are not
expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement, to prevent the disclosure of Confidential Information of the other
Party, other than to its employees, or to its other agents who must have access
to such Confidential Information for such Party to perform its obligations
hereunder, who will each agree to comply with this section. Notwithstanding the
foregoing, either Party may issue a press release or other disclosure containing
Confidential Information without the consent of the other Party, to the extent
such disclosure is required by law, rule, regulation or government or court
order or as reasonably advised by legal counsel. In such event, the disclosing
Party will provide at least five (5) business days prior written notice of such
proposed disclosure to the other Party. Further, in the event such disclosure
is required of either Party under the laws, rules or regulations of the
Securities and Exchange Commission or any other applicable governing body, such
Party will (i) redact mutually agreed-upon portions of this Agreement to the
fullest extent permitted under applicable laws, rules and regulations and (ii)
submit a request to such governing body that such portions and other provisions
of this Agreement receive confidential treatment under the laws, rules and
regulations of the Securities and Exchange Commission or otherwise be held in
the strictest confidence to the fullest extent permitted under the laws, rules
or regulations of any other applicable governing body.
V. RELATIONSHIP WITH AOL MEMBERS
Solicitation of Subscribers. (a) During the term of this Agreement and for a
two year period thereafter, ICP will not use the AOL Network (including, without
limitation, the e-mail network contained therein) to solicit AOL Members on
behalf of another Interactive Service. More generally, ICP will not send
unsolicited, commercial e-mail (i.e., "spam") or other online communications
through or into AOL's products or services, absent a Prior Business
Relationship. For purposes of this Agreement, a "Prior Business Relationship"
will mean that the AOL Member to whom commercial e-mail or other online
communication is being sent has voluntarily either (i) engaged in a transaction
with ICP or (ii) provided information to ICP through a contest, registration, or
other communication, which included clear notice to the AOL Member that the
information provided could result in commercial e-mail or other online
communications being sent to that AOL Member by ICP or its agents. Any
commercial e-mail or other online communications to AOL Members which are
otherwise permitted hereunder will (x) include a prominent and easy means to
"opt-out" of receiving any future commercial e-mail communications from ICP and
(y) shall also be subject to AOL's then-standard restrictions on distribution of
bulk e-mail (e.g., related to the time and manner in which such e-mail can be
distributed through or into the AOL product or service in question).
(b) ICP shall ensure that its collection, use and disclosure of information
obtained from AOL Members under this Agreement ("Member Information") complies
with (i) all applicable laws and regulations and (ii) AOL's standard privacy
policies, available on the AOL Service at the keyword term "Privacy" (or, in the
case of the Customized Site, ICP's standard privacy policies so long as such
policies are prominently published on the site and provide adequate notice,
disclosure and choice to users regarding ICP's collection, use and disclosure of
user information). ICP will not disclose Member Information collected hereunder
to any third party in a manner that identifies AOL Members as end users of an
AOL product or service or use Member Information collected under this Agreement
to market another Interactive Service.
Email Newsletters. Any email newsletters sent to AOL Members by ICP or its
agents shall (i) be subject to AOL's policies on use of the email functionality,
including but not limited to AOL's policy on unsolicited bulk email, (ii) be
sent only to AOL Members requesting to receive such newsletters, (iii) not
contain Content which violates AOL's Terms of Service, and (iv) not contain any
advertisements, marketing or promotion for any other Interactive Service.
AOL Member Communications. To the extent ICP is otherwise permitted to send
communications to AOL Members (in accordance with the other requirements
contained herein): in any such communications to AOL Members on or off the
Customized Site (including, without limitation, e-mail solicitations), ICP will
limit the subject matter of such communications to those categories of products,
services and/or content that are specifically contemplated by this Agreement and
will not encourage AOL Members to take any action inconsistent with the scope
and purpose of this Agreement, including without limitation, the following
actions: (i) using an Interactive Site other than the Customized Site for the
purchase of Products, (ii) using Content other than the Licensed Content; (iii)
bookmarking of Interactive Sites; or (iv) changing the default home page on the
AOL browser. Additionally, with respect to such AOL Member communications, in
the event that ICP encourages an AOL Purchaser to purchase products through such
communications, ICP shall ensure that (a) the AOL Network is expressly promoted
as the primary means through which the AOL Purchaser can access the Customized
Site (including without limitation by stating the applicable Keyword Search Term
and including direct links to specific offers within the Customized Site) and
(b) any link to the Customized Site will link to a page which indicates to the
AOL Purchaser that such user is in a site which is affiliated with the AOL
Network.
VI. TREATMENT OF CLAIMS
Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM BREACH OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE AOL
NETWORK OR ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY,
"DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE TO THE OTHER
PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE
SUBJECT TO INDEMNIFICATION BELOW. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY"
SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE
AGGREGATE AMOUNTS PAYABLE HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE
TO SUCH LIABILITY OCCURRED; PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE
PROVISIONS OF THIS AGREEMENT.
No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK,
THE AOL TOOLS, OR ANY AOL PUBLISHING TOOLS, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
THE PROFITABILITY OF AOL NETWORK OR THE CUSTOMIZED SITE.
Indemnity. Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("Liabilities"), resulting from the indemnifying Party's material breach or
alleged breach of any duty, representation, or warranty of this Agreement. In
addition, ICP will defend, indemnify, save and hold harmless AOL and AOL's
officers, directors, agents, affiliates, distributors, franchisees and employees
from any and all Liabilities arising out of or in any way related to the
Licensed Content.
If a Party entitled to indemnification hereunder (the "Indemnified Party")
becomes aware of any matter it believes is indemnifiable hereunder involving any
claim, action, suit, investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "Action"), the Indemnified Party
shall give the other Party (the "Indemnifying Party") prompt written notice of
such Action. Such notice shall (i) provide the basis on which indemnification
is being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the
Indemnified Party. The
23
<PAGE>
Indemnifying Party shall have a period of ten (10) days after delivery of such
notice to respond. If the Indemnifying Party elects to defend the Action or does
not respond within the requisite ten (10) day period, the Indemnifying Party
shall be obligated to defend the Action, at its own expense, and by counsel
reasonably satisfactory to the Indemnified Party. The Indemnified Party shall
cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party
and its counsel in the defense and the Indemnified Party shall have the right to
participate fully, at its own expense, in the defense of such Action. If the
Indemnifying Party responds within the required ten (10) day period and elects
not to defend such Action, the Indemnified Party shall be free, without
prejudice to any of the Indemnified Party's rights hereunder, to compromise or
defend (and control the defense of) such Action. In such case, the Indemnifying
Party shall cooperate, at its own expense, with the Indemnified Party and its
counsel in the defense against such Action and the Indemnifying Party shall have
the right to participate fully, at its own expense, in the defense of such
Action. Any compromise or settlement of an Action shall require the prior
written consent of both Parties hereunder, such consent not to be unreasonably
withheld or delayed.
Acknowledgment. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES
AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VII. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable efforts
to promptly resolve any claim, dispute, claim, controversy or disagreement (each
a "Dispute") between the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement or any of the transactions
contemplated hereby. If the Parties cannot resolve the Dispute within such
timeframe, the Dispute shall be submitted to the Management Committee for
resolution. For ten (10) days after the Dispute was submitted to the Management
Committee, the Management Committee shall have the exclusive right to resolve
such Dispute; provided further that the Management Committee shall have the
final and exclusive right to resolve Disputes arising from any provision of this
Agreement which expressly or implicitly provides for the Parties to reach mutual
agreement as to certain terms. If the Management Committee is unable to
amicably resolve the Dispute during the ten (10) day period, then the Management
Committee will consider in good faith the possibility of retaining a third party
mediator to facilitate resolution of the Dispute. In the event the Management
Committee elects not to retain a mediator, the Dispute will be subject to the
resolution mechanisms described below. "Management Committee" shall mean a
committee made up of a senior executive from each of the Parties for the purpose
of resolving Disputes under this Section and generally overseeing the
relationship between the Parties contemplated by this Agreement. Neither Party
shall seek, nor shall be entitled to seek, binding outside resolution of the
Dispute unless and until the Parties have been unable to amicably resolve the
dispute as set forth in this paragraph (a) and then, only in compliance with the
procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights, including
but not limited to intellectual property and confidentiality, and (ii) any
provision of this Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms (which shall be resolved
by the Parties solely and exclusively through amicable resolution as set forth
in paragraph (a)), any Dispute not resolved by amicable resolution as set forth
in paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington, D.C. and shall be initiated and conducted in accordance with the
Commercial Arbitration Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("Demand"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures shall
not apply in order to promote the efficient arbitration of Disputes where the
nature of the Dispute, including without limitation the amount in controversy,
does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party shall
name an arbitrator within ten (10) days after the delivery of the Demand. The
two arbitrators named by the Parties may have prior relationships with the
naming Party, which in a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two, shall be a neutral
participant, with no prior working relationship with either Party. If the two
arbitrators are unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
If a vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may not continue with the hearing and
determination of the controversy, unless the Parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law, shall
govern the arbitrability of all Disputes. The arbitrators shall allow such
discovery as is appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply in
toto. The arbitrators may enter a default decision against any Party who fails
to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages
only. Any award by the arbitrators shall be accompanied by a written opinion
setting forth the findings of fact and conclusions of law relied upon in
reaching the decision. The award rendered by the arbitrators shall be final,
binding and non-appealable, and judgment upon such award may be entered by any
court of competent jurisdiction. The Parties agree that the existence, conduct
and content of any arbitration shall be kept confidential and no Party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each Party's financial statements.
(f) Each Party shall pay the fees of its own attorneys, expenses of witnesses
and all other expenses and costs in connection with the presentation of such
Party's case (collectively, "Attorneys' Fees"). The remaining costs of the
arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be born equally by the parties. Notwithstanding the foregoing,
the arbitrators may modify the allocation of Arbitration Costs and award
Attorneys' Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively, "Non-
Arbitration Claims") shall be brought in a court of competent jurisdiction in
the Commonwealth of Virginia. Each Party irrevocably consents to the exclusive
jurisdiction of the courts of the Commonwealth of Virginia and the federal
courts situated in the Commonwealth of Virginia, over any and all Non-
Arbitration Claims and any and all actions to enforce such claims or to recover
damages or other relief in connection with such claims or to enforce a judgment
rendered in an arbitration proceeding.
VIII. MISCELLANEOUS
Auditing Rights. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, AOL shall have the right, at its expense, to
conduct a reasonable and necessary copying and inspection of portions of the
Records of ICP that are directly related to amounts payable to AOL pursuant to
this Agreement, which right may, at AOL's option, be exercised by [*] an
independent certified public accounting firm to conduct such inspection. For the
sole purpose of ensuring compliance with this Agreement, ICP shall have the
right, at its expense, to direct an independent certified public accounting firm
subject to strict confidentiality restrictions to conduct a reasonable and
necessary copying and inspection of portions of the Records of AOL that are
directly related to amounts payable to ICP pursuant to this Agreement. Any such
audit may be conducted after twenty (20) business days prior written notice,
subject to the following. Such audits shall not be made more frequently than
once every twelve months. No such audit of AOL shall occur during the period
beginning on June 1 and ending October 1. In lieu of providing access to its
Records as described above, AOL shall be entitled to provide ICP with a report
from an independent certified public accounting firm confirming the information
to be derived from such Records.
Excuse. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by
24
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
this Agreement as a result of any causes or conditions which are beyond such
Party's reasonable control and which such Party is unable to overcome by the
exercise of reasonable diligence.
Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname
"AOLNotice@aol.com" in the case of AOL) or by confirmed facsimile; (ii) on the
delivery date if delivered personally to the Party to whom the same is directed;
(iii) one business day after deposit with a commercial overnight carrier, with
written verification of receipt; or (iv) five business days after the mailing
date, whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs (fax no. 703-
265-1206) and the Deputy General Counsel (fax no. 703-265-1105), each at the
address of AOL set forth in the first paragraph of this Agreement. In the case
of ICP, except as otherwise specified herein, the notice address shall be the
address for ICP set forth in the first paragraph of this Agreement, with the
other relevant notice information, including the recipient for notice and, as
applicable, such recipient's fax number or AOL e-mail address, to be as
reasonably identified by AOL.
No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
Return of Information. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all confidential information,
documents, manuals and other materials specified by the other Party.
Survival. Sections IV, V, VI, VII and VIII of this Exhibit C, shall survive the
completion, expiration, termination or cancellation of this Agreement. In
addition, all payment terms of this Agreement and any provision that expressly
states that it shall survive or which, by its nature, must survive the
completion, expiration, termination or cancellation of this Agreement, shall
survive the completion, expiration, termination or cancellation of this
Agreement.
Entire Agreement. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
Amendment. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
Further Assurances. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by the other Party for the implementation or continuing
performance of this Agreement.
Assignment. ICP shall not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL.
Assumption of this Agreement by any successor to ICP (including, without
limitation, by way of merger, consolidation or sale of all or substantially all
of ICP's stock or assets) shall be subject to AOL's prior written approval.
Notwithstanding the foregoing, if AOL's prior written approval for an assumption
is not obtained by ICP in connection with [*], AOL shall have, [*], the right to
terminate this Agreement. Further, in the event of any Change of Control of ICP
or other transaction resulting in control of ICP by an Interactive Service or an
entity that controls, is controlled by or is under common control with an
Interactive Service, AOL shall have, [*], the right to terminate this Agreement
upon written notice to ICP. 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. [*] shall mean a merger,
consolidation, or sale of all or substantially all of the [*], of ICP provided
that (a) the entity assuming this Agreement has adequate capacity (including
financial capacity) to fully perform hereunder, and (b) such assumption shall
not be deemed to release ICP from liability hereunder.
Subcontractors. To the extent ICP desires to utilize consultants or
subcontractors to perform a material portion of its obligations under this
Agreement, utilization of such consultants and/or subcontractors shall be
subject to AOL's prior written approval and ICP shall provide AOL with direct
contact information for the employees of such consultants and/or subcontractors
who are responsible for performing such obligations, which employees shall be
available during business hours for consultation with AOL. ICP shall be
responsible for ensuring that all consultants and subcontractors comply with
this Agreement and ICP shall be liable for any breaches of this Agreement caused
by any consultant or subcontractor.
Construction; Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
Remedies. Except where otherwise specified, the rights and remedies granted to
a Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
Applicable Law. This Agreement shall be interpreted, construed and enforced in
all respects in accordance with the laws of the Commonwealth of Virginia except
for its conflicts of laws principles.
Export Controls. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or re-
export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
Headings. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document. Signatures sent by facsimile shall be deemed original
signatures.
25
[*] Portions have been omitted pursuant to a confidential treatment request.
<PAGE>
EXHIBIT D
---------
Detailed Schedule and Bona-Fide Value of ICP In-Kind Commitments to be mutually
agreed upon by the Parties as set forth in Section 1.4.2
26
<PAGE>
EXHIBIT E
---------
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS
Pursuant to Section 2.3 of the Interactive Services Agreement between
______________ ("ICP") and America Online, Inc. ("AOL"), dated as of
_________________, 2000 (the "Agreement"), the following report is delivered to
AOL for the period beginning _____________ and ending __________ (the "Period"):
I. Promotional Commitments
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Period:
Type of Date(s) of Duration/Circulation of Relevant Contract
Promotion Promotion Promotion Section
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
IN WITNESS WHEREOF, this Certificate has been executed this ___ day of
___________, 199_.
__________________________________
By: ______________________________
Print Name: _____________________
Title: ___________________________
Date: ____________________________
27
<PAGE>
EXHIBIT F
---------
TECHNICAL OPERATING STANDARDS
-----------------------------
1. Customized Site Infrastructure. ICP will be responsible for all
communications, hosting and connectivity costs and expenses associated with
the Customized Site. ICP will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet traffic
demands on the Customized Site from the AOL Network. ICP will design and
implement the network between the AOL Service and Customized Site such that
(i) no single component failure will have a materially adverse impact on
AOL Members seeking to reach the Customized Site from the AOL Network and
(ii) no single line under material control by ICP will run at more than 70%
average utilization for a 5-minute peak in a daily period. In this regard,
ICP will provide AOL, upon request, with a detailed network diagram
regarding the architecture and network infrastructure supporting the
Customized Site. In the event that ICP elects to create a custom version of
the Customized Site in order to comply with the terms of this Agreement,
ICP will bear responsibility for all aspects of the implementation,
management and cost of such customized site.
2. Optimization; Speed. ICP will use commercially reasonable efforts to
ensure that: (a) the functionality and features within the Customized Site
are optimized for the client software then in use by AOL Members; and (b)
the Customized Site is designed and populated in a manner that minimizes
delays when AOL Members attempt to access such site. At a minimum, ICP will
ensure that the Customized Site's data transfers initiate within fewer than
fifteen (15) seconds on average. Prior to commercial launch of any material
promotions described herein, ICP will permit AOL to conduct performance and
load testing of the Customized Site (in person or through remote
communications), with such commercial launch not to commence until such
time as AOL is reasonably satisfied with the results of any such testing.
3. User Interface. ICP will maintain a graphical user interface within the
Customized Site that is competitive in all material respects with
interfaces of other similar sites based on similar form technology. AOL
reserves the right to review and approve the user interface and site design
prior to launch of the Promotions and to conduct focus group testing to
assess compliance with respect to such consultation and with respect to
ICP's compliance with the preceding sentence.
4. Technical Problems. ICP agrees to use commercially reasonable efforts to
address material technical problems (over which ICP exercises control)
affecting use by AOL Members of the Customized Site (an "ICP Technical
Problem") promptly following notice thereof. In the event that ICP is
unable to promptly resolve an ICP Technical Problem following notice
thereof from AOL (including, without limitation, infrastructure
deficiencies producing user delays), AOL will have the right to regulate
the promotions it provides to ICP hereunder until such time as ICP corrects
the ICP Technical Problem at issue.
5. Monitoring. ICP will ensure that the performance and availability of the
Customized Site is monitored on a continuous (24 X 7) basis. ICP will
provide AOL with contact information (including e-mail, phone, pager and
fax information, as applicable, for both during and after business hours)
for ICP's principal business and technical representatives, for use in
cases when issues or problems arise with respect to the Customized Site.
6. Telecommunications. Where applicable the ICP will utilize encryption
methodology to secure data communications between the Parties' data
centers. The network between the Parties will be configured such that no
single component failure will significantly impact AOL Users. The network
will be sized such that no single line over which the ICP has material
control runs at more than 70% average utilization for a 5-minute peak in a
daily period.
7. Security. ICP will utilize Internet standard encryption technologies
(e.g., Secure Socket Layer - SSL) to provide a secure environment for
conducting transactions and/or transferring private member information
(e.g. credit card numbers, banking/financial information, and member
address information) to and from the Customized Site. ICP will facilitate
periodic reviews of the Customized Site by AOL in order to evaluate the
security risks of such site. ICP will promptly remedy any security risks or
breaches of security as may be identified by AOL's Operations Security
team.
8. Technical Performance.
i. ICP will design the Customized Site to support the AOL-Client
embedded versions of the Microsoft Internet Explorer 3.XX and 4.XX
browsers (Windows and Macintosh), the Netscape Browser 4.XX and make
commercially reasonable efforts to support all other AOL browsers
listed at: "http://webmaster.info.aol.com."
ii. To the extent ICP creates customized pages on the Customized Site for
AOL Members, ICP develop and employ a methodology to detect AOL
Members (e.g., examine the HTTP User-Agent field in order to identify
the "AOL Member-Agents" listed at: http://webmaster. info.aol.com and
referenced under the heading "Browser Detection."
iii. ICP will periodically review the technical information made available
by AOL at http://webmaster.info.aol.com.
iv. ICP will design its site to support HTTP 1.0 or later protocol as
defined in RFC 1945 and to adhere to AOL's parameters for refreshing
or preventing the caching of information in AOL's proxy system as
outlined in the document provided at the following URL:
http://webmaster.info.aol.com. ICP is responsible for the
manipulation of these parameters in web based objects so as allow
them to be cached or not cached as outlined in RFC 1945.
v. Prior to releasing material, new functionality or features through
the Customized Site ("New Functionality"), ICP will use commercially
reasonable efforts to either (i) test the New Functionality to
confirm its compatibility with AOL Service client software and (ii)
provide AOL with written notice of the New Functionality so that AOL
can perform tests of the New Functionality to confirm its
compatibility with the AOL Service client software. Should any new
material, new functionality or features through the Customized Site
be released
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without notification to AOL, AOL will not be responsible for any
adverse member experience until such time that compatibility tests
can be performed and the new material, functionality or features
qualified for the AOL Service.
9. AOL Internet Services Partner Support. AOL will provide ICP with access to
the standard online resources, standards and guidelines documentation,
technical phone support, monitoring and after-hours assistance that AOL
makes generally available to similarly situated web-based partners. AOL
support will not, in any case, be involved with content creation on behalf
of ICP 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 Customized Site. Support to be provided by AOL is contingent
on ICP providing to AOL demo account information (where applicable), a
detailed description of the Customized Site's software, hardware and
network architecture and access to the Customized Site for purposes of such
performance and the coordination load testing as AOL elects to conduct.
10. Customized Programming. The terms and conditions of this Exhibit
applicable to the Customized Site shall apply equally to any Customized
Programming that is (a) programmed in HTML or (b) web-based.
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EXHIBIT G
---------
KEYWORD GUIDELINES
------------------
GRAPHIC: PRINT/TV/"OUT OF HOME"
. Required treatment: (AOL Triangle appears) America Online Keyword:
Athletes Direct
or
America Online Keyword: Athletes Direct
. "America Online" must be spelled out
. Capitalization - listing shall appear in initial caps only
Note: K of Keyword must always be capitalized
. Font, Font style and Size must all be consistent
. Listing size must be of equal prominence to that of any/all other URLs
featured but shall, in any event, be at least10 point font and comprise at
least five percent (5%) of the live area of any print or out of home
promotion and at least 75 scan lines in any television advertisement
AUDIO: TV/RADIO
. "America Online Keyword" must be announced entirely
Example voiceover would read:
"For more information, please visit America Online Keyword: Athletes Direct"
Logo Usage Guidelines
Not Allowed
> No color gradients
> No "filled" icons (must be solid)
> No different colors for triangle and the copy (must be all the same color)
> No words/copy on top of the logo or triangle
> No script writing of "America Online" used alone without triangle
> No adaptations of the icon or logo (i.e., don't turn it into a mountain or
Xmas tree)
> No America Online or AOL in all lower case letters (either use initial caps.
or all caps.)
> No turning logo on its side, upside down, etc.
> No changing the proportion of the logo
> No "deforming" the logo (stretching it out or making it "skinny")
> No giving the logo structural dimension or "blurring" the logo
> No reconfiguring the elements logo (i.e., don't put "America" on the left of
the triangle & "Online" on the right)
Registration marks
> Must have small registration marks ((R)) at the right-hand tip of the
triangle and at the tip of the "e" in "Online"
Approved Colors:
----------------
> black
> (reversed-out) white
> PMS 534 blue (NOTE: this is AOL's corporate color)
> PMS 286 blue
> Reflex blue
> PMS 123 yellow
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> PMS 2617 purple
NOTE: the entire logo (triangle and type) must always be 100% of the same
color
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EXHIBIT H
AOL Approval
------------
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.
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[*] Portions have been omitted pursuant to a confidential treatment request.