Co-Branding Agreement - At Home Corp. and E-centives Inc.
E-CENTIVES - EXCITE@HOME CO-BRANDING AGREEMENT
This agreement ("Agreement") is entered into as of the 16th day of February,
2000 ("Effective Date"), by and between the At Home Corporation ("Excite@Home"
or "Excite"), located at 450 Broadway, Redwood City, California 94063, and
e-centives, Inc., ("Application Provider" or "e-centives"), a Delaware
corporation, located at 6903 Rockledge Drive, Suite 1200, Bethesda, MD 20817.
RECITALS
A. Excite@Home provides the @Home Service, maintains sites on the Internet,
including http://www.excite.com, and owns and/or manages or labels related
Web sites worldwide (collectively, the "Excite Network") which, among other
things, allow its users to search for and access content and other sites on
the Internet.
B. Excite@Home also maintains and/or manages certain Web pages which may be
delivered to users worldwide via email, desktop "channels" or Internet
"push" technologies (collectively, "Broadcast Pages") and which may
incorporate content supplied to Excite@Home by third parties for the
purpose of providing value to Excite@Home users and providing access to the
content, products and/or services of such third parties.
C. Application Provider owns or has the right to distribute certain content
consisting principally of coupons and offers for products and services, and
maintains a related site on the Internet at http://www.ecentives.com (the
"Application Provider Site").
D. Excite@Home and Application Provider wish to distribute Application
Provider's content through the Excite Network and/or Broadcast Pages,
establish and maintain related co-branded pages on the Application Provider
Site, establish links between the Excite Network and the co-branded pages
on the Application Provider Site, and promote the Application Provider on
the Excite Network.
Therefore, the parties agree as follows:
1. DEFINITIONS
a) "Co-Branded Application" shall mean an Internet application designed,
hosted, and managed by Application Provider whose purpose is to allow
for the customer-specific selection, provision, and dissemination of
offers (both targeted and untargeted, as hereinafter defined in
EXHIBIT A) and coupons for products and services offered by
Application Provider's merchant partners.
b) "Excite Content" shall mean all content, information and functionality
provided by Excite to e-centives, including but not limited to, links
to
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
Community Products, Excite controlled advertising and Excite sourced
offers, as further defined herein.
c) "e-centives Content" shall mean all content, information and
functionality provided by e-centives through the Co-Branded
Application, including but not limited to, e-centives controlled
advertising and e-centives sourced offers, as further defined herein.
d) "User(s)" shall mean an end-user customer of the Excite@Home Network
of web-sites and services.
e) "Excite@Home Member(s)" shall mean a User who has registered as a
member of the Excite@Home Network, regardless of that User's stated
preference regarding allowing their registration information to be
shared with third parties.
f) "Program Member(s)" shall mean an Excite@Home Member who has:
i) Been provided access to the Co-Branded Application, and
ii) Has opted-in to allow all his or her registration information to
be shared with Application Provider and/or unspecified third
parties.
iii) Each Program Member shall be further classified into one of two
mutually exclusive categories, General Program Member or
Qualified Program Member, as defined below:
(1) "General Program Member(s)" shall mean a Program Member who
has not provided "Shopping Category Data" about him or
herself, as defined below, and whose URS Data has been
provided to e-centives no later than 5 days after the
original date the User became an Excite@Home Member.
(2) "Qualified Program Member(s)" shall mean a Program Member
who has provided "Shopping Category Data" about him or
herself, as defined below.
g) "User Data" shall mean all information regarding an individual Program
Member, as further broken into these distinct categories:
i) "URS User Data" shall mean those data elements that are captured
in the Excite@Home primary registration system via the
Excite@Home Member registration form that is most commonly
provided to new Excite@Home Members. URS User Data shall at a
minimum include user-supplied ZIP Code, gender, date of birth,
deliverable email address, and original Excite@Home registration
date.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
ii) "Superset Data" shall mean those data elements, independent of
any specific purchase transaction, which are requested from all
Qualified Program Members, irrespective of whether or not this
information shall be collected in the Co-Branded Application.
Solely for purposes of illustration, such data might or might not
include categorical data elements such as Marital Status,
Income, and Presence of Children in the Household.
iii) "Shopping Category Data" shall mean the list of specific shopping
categories that a Qualified Program Member has indicated interest
in. Shopping Category Data shall be binary in nature (e.g. Yes/No
selections) and shall be mutually agreed upon. Solely for
purposes of illustration, such data might or might not include
categories such as Automobiles, Electronics, or Clothing.
iv) "Transactional Data" shall mean data elements descriptive of a
specific purchase or purchase intent event which is enabled by
the Co-Branded Application, such as purchase amount, payment
method, items purchased, items selected but ultimately not
purchased, etc.
h) "Payment-Eligible User Data" shall mean URS User Data from both
General Program Members and Qualified Program Members, and Shopping
Category Data and, where available, Superset Data, from Qualified
Program Members:
i) Whose Excite@Home registration data is sent to e-centives for
account creation,
ii) Who do not have an existing account with e-centives (as
determined by email address) as of the Effective Date, and
iii) Who, in the case of Qualified Program Members, have provided
shopping interest category, which data the Co-Branded Application
shall use to allow or restrict access to Targeted Offers, and
Co-Branded Application email opt-in selection during either (a)
Excite@Home Member registration or Excite@Home login or (b) offer
detail presentment by e-centives, or (c) other registration
process by e-centives.
2. CO-BRANDED APPLICATION
a) Application Provider will, at its sole expense, develop, host and
maintain the Co-Branded Application for Excite@Home. The primary
function of the Co-Branded Application will be to present Users with
coupons or other offers (both targeted and untargeted, as hereinafter
defined in EXHIBIT A) for products and services provided by
Application Provider's merchant partners with the intent of converting
said Users into Program
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
Members. The Co-Branded Application will include offers and other
content and functionality (Excite Content and e-centives Content,
collectively "Application Content") as further described in EXHIBIT B.
b) Application Provider will design and create web pages containing the
Application Content ("Application Pages"). The Application Pages will be
presented in accordance with guidelines that Excite@Home will provide
Application Provider, which include, but are not limited to, page
performance standards and header and other design/user interface
standards. The Application Pages will prominently feature Excite@Home
branding and will be presented in a "look and feel" consistent with the
"look and feel" of the Excite Network. Excite@Home will have final
approval over all Application Pages. The Application Pages shall be
developed in accordance, in all material respects, with the requirements
established by EXHIBIT B.
c) Application Provider will develop its category/directory structures to
be similar to those found on the Excite@Home Network and in accordance
with the requirements established by EXHIBIT B, SECTION 4.
d) Application Provider will host the Co-Branded Application on its
Internet servers, but will serve the Co-Branded Application from an
"excite.com" masked domain name (or such other domain as Excite@Home may
elect at its sole option) so that Excite@Home can receive the reach and
page view credit. Application Provider will have sole responsibility for
providing and maintaining, at its expense, the Application Provider
Site, the Co-Branded Application, the Application Content (excluding the
provision of Excite Content), and any updates thereto.
e) Each Co-Branded Page will include one or more links to the Excite
Network, as set forth in Section 3(d). Excite@Home will supply
Application Provider with the URLs for these links.
f) Other than updates to the Application Content and to advertising
displayed on the Application Pages, Application Provider will not change
the Co-Branded Application without Excite@Home's prior consent, which
consent will not be unreasonably withheld. Excite@Home will respond to
change requests within seven (7) days of receipt, and any failure to so
respond shall be deemed an approval.
g) Excite@Home may, upon fifteen (15) days prior notice to Application
Provider, request reasonable revisions to the Co-Branded Application as
needed to reflect changes that will not adversely affect Application
Provider, such as changes to Excite@Home's name and/or brand or changes
to the URLs for the links to the Excite Network. Application Provider
will use reasonable efforts to accommodate Excite@Home's requested
changes within the fifteen (15) day period.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
h) Excite@Home will have editorial control over all email or other
similar communication with Excite@Home Members. Correspondence solely
regarding the Co-Branded Application will only be presented to Program
Members; communication with all other Excite@Home Members will be tied
to regular Excite@Home email schedules, which may or may not be
integrated with other email content at Excite@Home's sole option.
Correspondence specific to the Co-Branded Application may be mailed on
a schedule independent of other Excite@Home member mailings for those
Qualified Program Members that specify a frequency of contact. Until
an individual General Program Member specifies a frequency of email
contact, he or she will by default receive email pursuant to the
Co-branded Application's every-other-week email option setting. Any
mailings to such General Program Members who have not specified a
frequency of email contact will be mailed on a schedule that
coordinates contact with other Excite@Home newsletter and promotional
contacts, but at least with the frequency of every-other-week.
Communications with Excite@Home Members shall further be subject to
the requirements of EXHIBIT D.
3. INTEGRATION WITH EXCITE@HOME SERVICES
a) Application Provider will integrate the Co-Branded Application with
Excite@Home's Universal Registration System ("URS") according to
Excite@Home's technical and operational specifications. Each party
will incur their own costs related to the integration.
b) Information collected through the Co-Branded Application will include,
but not be limited to,
i) URS User Data, whose categories may be modified from time to time
at Excite@Home's sole option;
ii) Superset Data, whose categories shall be determined by mutual
agreement but subject to Excite@Home's final approval;
iii) Shopping Category Data, whose contents shall be determined by
mutual agreement but subject to Excite@Home's final approval.
c) All Information collected under this Agreement will be transmitted
between the parties in a manner to be mutually agreed upon.
d) The Co-Branded Application will include content with links that direct
Users to other Excite@Home content, including but not limited to
community products, which include message boards, chat, clubs, home
pages, instant messaging, calendar, address book, email, photos and
any other community products which Excite@Home may develop during the
term of this Agreement ("Community Products"). The number of links to
other Excite@Home content shall be consistent with the general
quantity of links implemented on comparable portions of the Excite
Network.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
Application Provider will not feature non-Excite@Home Community Products
on the Co-Branded Application without the written permission of
Excite@Home.
e) Application Provider will publish to Excite@Home subsets of its content
in a mutually-agreed XML or pre-defined text format (e.g. URL's
captions, brief two-sentence descriptions, news headlines, pointers into
longer descriptions, and abstracts) in order for Excite@Home to
integrate, at its option, portions of the content into its search
results, directory results and other areas of Excite@Home in order to
drive traffic to the Co-Branded Application, as deemed appropriate by
Excite@Home in its sole discretion. Neither party will export to the
other party any licensed third-party data for which the providing party
does not have redistribution rights.
f) Application Provider will provide and regularly update database mappings
necessary to maximize search and directory integration for the
Co-Branded Application into Excite@Home's services.
g) Application Provider will provide Excite@Home with a regularly updated
data feed of product information for integration into Excite@Home's
commerce services. The data feed will be provided according to
Excite@Home's then-applicable standard product data import
specifications, which specifications shall be substantially similar to
those required by similar service providers in the industry.
h) Excite@Home will provide Application Provider with a regularly updated
data feed of product information for integration into the Co-Branded
Application. The data feed will be provided according to Excite@Home's
standard product data export specifications, which specifications shall
be substantially similar to those required by similar service providers
in the industry.
i) Excite@Home shall not offer any Excite-branded or Excite-co-branded
service during the Term of this Agreement that is substantially similar
in functionally to the Co-Branded Application.
4. ADVERTISING ON THE CO-BRANDED APPLICATION
a) Excite@Home will have the right to sell and serve Excite banner,
sponsorship, and text link advertising on the Co-Branded Application, as
limited by the terms of this Section. Excite@Home will have the right to
sell and serve such advertising on all pages within the Co-Branded
Application. Revenues from such advertising shall accrue wholly to
Excite@Home. Application Provider will enable the ad-serving and
accommodate Excite@Home's technical requirements, which shall be
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
consistent with those of Excite's other partners and the standards
generally used in the industry, at its own expense.
b) Banner advertising shall be limited to one standard-size banner below
the Co-Branded Application's content area, as described in Section 2.
c) Sponsorship modules will be present on the Co-Branded Application in a
quantity consistent with the overall quantity within other shopping
content areas of Excite. Each party shall have the right to sell and
serve advertisements on 50% of the sponsorship tiles within the Co-Branded
Application. As of the Effective Date of this Agreement, pages within
Excite@Home's shopping service contain four sponsorship tiles arranged
vertically on the right hand side of each page, though over time this may
change at Excite@Home's sole option, but such changes shall not conflict
with Application Provider's contractual obligations. Within this
framework, Application Provider will have access to the first and third
tiles from the top; Excite@Home will have access to the second and fourth
tiles. Should additional tiles be added during the term of this Agreement,
the first incremental tile shall be allocated to Application Provider, the
following to Excite@Home, and so forth. Revenue generated by the parties
from such activities shall not be shared but rather shall be retained by
the respective party to whom the Sponsorship tile(s) are allocated.
d) Excite@Home will not serve advertising on the Co-Branded Application for
any "Application Provider Named Competitor," as specified in EXHIBIT E.
Application Provider may designate no more than 10 companies as Named
Competitors. Not more than once per quarter, Application Provider may
update the list of Application Provider Named Competitors, but may not add
to the list any company with which Excite@Home has a material existing
relationship as of the Effective Date of this Agreement. Within three
business days of receiving Application Provider's written update,
Excite@Home will remove any advertising from Application Provider's listed
competitors displayed on the Co-Branded Pages.
e) Application Provider will not serve advertising on the Co-Branded
Application for any "Excite@Home Named Competitor," as specified in
EXHIBIT E. Excite@Home may designate no more than 10 companies as Named
Competitors. Not more than once per quarter, Excite@Home may update the
list of Excite@Home Named Competitors, but may not add to the list any
company with which e-centives has a material existing relationship as of
the Effective Date of this Agreement. Within three business days of
receiving Excite@Home's written update, Application Provider will remove
any advertising from Excite@Home's listed competitors displayed on the
Co-Branded Pages.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
f) Application Provider will not serve advertising on the Co-Branded
Application that (i) violates any law, rule, or regulation, (ii)
relates to pornography, gaming, tobacco, or alcohol, (iii) is the
subject of a claim to trademark, trade name, service mark, or other
proprietary rights, or Excite@Home may request removal of any such
advertising from the Co-Branded Application, and Application Provider
shall remove any such advertising within twenty-four (24) hours of
receipt of any such written request.
5. PROMOTION OF THE CO-BRANDED APPLICATION
a) Excite@Home will provide promotion for the Co-Branded Application as
described in EXHIBIT F. Excite@Home may provide additional links to,
or other promotion for, the Co-Branded Application from elsewhere on
or off the Excite Network at its sole discretion.
6. USER DATA OWNERSHIP
a) Ownership
i) The operation of the Co-Branded Application will permit the
collection of Payment-Eligible User Data.
ii) Payment-Eligible URS User Data, Superset Data, and Shopping
Category Data collected through the operation of the Co-Branded
Application will be jointly owned by the parties. The parties'
respective ownership shall be subject to the restrictions set
forth in this Agreement.
iii) Transactional Data, when available, shall be jointly owned by
the parties, except in those cases where Application Provider's
contractual agreement(s) with its merchant partner(s) prevent
the sharing of said Transactional Data with third parties. In
all cases Application Provider shall use commercially reasonable
efforts to ensure that Transactional Data may be shared with and
co-owned by Excite@Home. The parties' respective ownership
rights shall be subject to the restrictions set forth in this
Agreement.
b) Restrictions
i) During the Term of this Agreement, Application Provider shall
own Payment-Eligible User Data solely for the purpose of
providing the services of the Co-Branded Application.
Application Provider may not use Payment-Eligible User Data to
solicit User traffic to www.e-centives.com or any other
co-branded version of www.e-centives.com with the intent of
driving such Users away from using the Co-Branded Application.
Notwithstanding the foregoing, solely for the period from the
Effective Date of this
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
Agreement to the Launch Date for the Co-Branded Application, as
hereinafter defined, Application Provider may use Payment Eligible
User Data to solicit User traffic to the co-branded area currently
in place at http://coupons.excite.com pursuant to the Sponsorship
Agreement effective March 5, 1999 in force between the parties.
ii) Application Provider may not sell, disclose, transfer, rent, or
license Payment-Eligible User Data in a form identifiable to any
particular user to any third party. Notwithstanding the foregoing,
Application Provider may disclose User Data if it is aggregated in a
non-associatable way with data from multiple online properties or in
an anonymous format on a per user basis.
iii) In no event may either party sell, disclose, transfer, rent, or
license Payment-Eligible User Data to the other party's Named
Competitors as listed in EXHIBIT E. Furthermore, Excite@Home may not
sell, disclose, transfer, rent, or license Shopping Category Data or
Superset Data to Data Restricted Named Companies as specified in
EXHIBIT I. Not more than once per quarter, Application Provider may
update the list of Application Provider Data Restricted Named
Companies shown in EXHIBIT I, so long as such list shall not exceed
twenty-five (25) companies.
iv) Excite@Home may not sell, disclose, transfer, rent or license any
Transactional Data regardless of Program Member preferences.
v) The collection, storage, and usage of all classes of
Payment-Eligible User Data shall comply with Excite@Home's
then-current security and privacy guidelines.
vi) Application Provider will not solicit any Excite@Home Member on
behalf of any Excite@Home Named Competitor during the Term of this
Agreement or thereafter. The list of Excite@Home Named Competitors
is defined in EXHIBIT E.
c) Effect of Termination or Expiration
i) In the event that the Agreement is terminated pursuant to Section
16.a.v due to e-centives' acquisition by an Excite@Home Named
Competitor, or by an entity controlling or controlled by an
Excite@Home Named Competitor, e-centives shall transfer all of its
right, title and interest in and to the Payment-Eligible User Data
to Excite. Notwithstanding the foregoing, Payment-Eligible User Data
that relates to users who have opted out in accordance with Section
5(a) of EXHIBIT D shall continue to be jointly owned by the parties.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
ii) In the event that the Agreement expires or is terminated for any
reason other than termination pursuant to Section 16.a.v, the
parties shall continue to jointly own Payment-Eligible User Data
in accordance with Section 6.a. The restrictions of Section 6.b
shall continue to apply, with the exception of subsections 6.b.i
and 6.b.v.
7. PAYMENTS AND DELIVERY OF USER DATA
a) Payments and delivery for General Program Member User Data records:
i) Excite@Home will supply to Application Provider a minimum of
***** Payment-Eligible User Data records for General Program
Members containing all available information set forth in Section
1(h) in each quarter during the Term of this Agreement, beginning
with the quarter in which the Launch Date (as hereinafter
defined) falls, for a minimum of ***** of these General
Program Member User Data records during the Term of this
Agreement.
ii) Excite@Home shall provide in excess of ***** such General
Program Member User Data records, to the extent such records are
available.
iii) The General Program Member User Data records supplied by
Excite@Home to Application Provider shall consist solely of URS
User Data.
iv) e-centives will pay for these General Program Member User Data
records to Excite@Home at a rate of $***** per unique User Data
record. This rate will apply only to the first ***** records.
e-centives will pay Excite@Home $***** in payments for these
General Program Member User Data records over the Term of
this Agreement, in accordance with the schedule set out in
Section 7.d. In the event that more than ***** such General
Program Member User Data records are supplied, payments for such
additional records shall be governed by Section 7.e.
v) The failure of Excite@Home to deliver at least ***** of these
General Program Member User Data records shall not be deemed a
breach of this Agreement. To the extent that Excite@Home fails to
deliver at least ***** General Program Member User Data
records, however, e-centives' total payment obligations under
Section 7.a.iv shall be correspondingly reduced at the rate of
$***** per record for any shortfall. In no event will any failure
to deliver at least ***** General Program Member User Data
records constitute cause to extend the Term of this Agreement.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
b) Payments and delivery for Qualified Program Member User Data records:
i) Excite@Home will supply to e-centives a minimum of *****
Payment-Eligible User Data records for Qualified Program Members
containing all available information set forth in Section 1(h) in each
quarter during the Term of this Agreement, beginning with the quarter
in which the Launch Date (as hereinafter defined) falls, for a minimum
of ***** of these Qualified Program Member User Data records
during the Term of this Agreement.
ii) Excite@Home shall provide in excess of ***** such Qualified
Program Member User Data records, to the extent such records are
available.
iii) The Qualified Program Member User Data records supplied by Excite@Home
to e-centives shall consist of URS User Data and Shopping Category
Data and, if available, Superset Data.
iv) e-centives will pay for these Qualified Program Member User Data
records to Excite@Home at a rate of $***** per unique User Data
record. This rate will apply only to the first ***** records.
e-centives will pay Excite@Home $***** in payments for these
Qualified Program Member User Data records over the Term of this
Agreement, in accordance with the schedule set out in Section 7.d.
In the event that more than ***** Qualified Program Member User
Data records are supplied, payments for such additional records shall
be governed by Section 7.e.
v) The failure of Excite@Home to deliver at least ***** such
Qualified Program Member User Data records shall not be deemed a
breach of this Agreement. To the extent that Excite@Home fails to
deliver at least ***** Qualified Program Member User Data records,
however, e-centives' total payment obligations under Section 7.b.iv
shall be correspondingly reduced at the rate of $***** per record for
any shortfall. In no event will any failure to deliver at least *****
Qualified Program Member User Data records constitute cause to
extend the Term of this Agreement.
c) Conversion of General Program Members to Qualified Program Members
i) It is anticipated that a substantial number of Program Members who
started as General Program Members will subsequently become Qualified
Program Members. Both parties stipulate that it is in their interests
for this to occur.
ii) If Excite@Home supplies e-centives with a Qualified Program Member
User Data record for a Program Member for whom it has
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
previously submitted a General Program Member User Data record, the
record shall be accounted for as follows:
(1) If the Qualified Program Member User Data record is supplied in
the same quarter in which the General Program Member User Data
record was originally supplied to e-centives, the Program Member
record shall be treated as always having been a Qualified Program
Member record for purposes of both volume and payments.
(2) If the Qualified Program Member User Data record is supplied in a
quarter different from the one in which the General Program
Member User Data record was originally supplied to e-centives,
the Program Member record shall be treated as a Qualified Program
Member record for purposes of both volume and payments, but a
credit shall be applied against the General Program Member volume
and payment guarantees.
(3) Payments shall be based upon the total number of records
delivered for each Program Member category. For payment purposes,
Excite@Home shall be obligated to track only total records per
category and shall not be obligated to track individual records.
d) Payment Schedule
i) Within ten (10) days of the Effective Date of this Agreement,
e-centives shall make a non-refundable payment to Excite@Home of
$***** as pre-payment for Payment-Eligible User Data records:
(1) e-centives will pay Excite@Home $***** in pre-payments for
***** General Program Member User Data records.
(2) e-centives will pay Excite@Home $***** in pre-payments for
***** Qualified Program Member User Data records.
ii) During the Term of this Agreement, on the first day of each quarter
following the quarter in which the Launch Date falls, e-centives shall
make additional non-refundable payments for the Payment-Eligible User
Data records. In the event that the Launch Date is delayed beyond
March 31, 2000, the April 1, 2000, payment pursuant to this subsection
shall be postponed and shall instead be made within (10) days of the
Launch Date. Payments under this subsection shall be calculated as
follows:
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
(1) General Program Member User Data: $*****, plus $*****
times the total number of records previously delivered, less
all amounts previously paid on account of General Program
Member User Data.
(2) Qualified Program Member User Data: $*****, plus $*****
times the total number of records previously delivered, less
all amounts previously paid on account of General Program
Member User Data.
iii) The amounts paid pursuant to subsection 7.d.ii shall be further
subject to the following cap: at no point shall e-centives' total
payments exceed an average of $***** per quarter. In the
event that the payment amount dictated by the formulas in
subsections 7.d.ii.(1) and (2) would raise e-centives' total
payments to an average in excess of $***** per quarter,
e-centives shall instead pay only that amount necessary to
maintain an average quarterly payment of $*****.
iv) A sample hypothetical payment schedule showing the effect of this
provision is included solely for purposes of illustration in
EXHIBIT G.
e) In the event that Excite@Home delivers more than *****
Payment-Eligible General Program Member User Data records and/or more
than ***** Payment-Eligible Qualified Program Member User Data
records during the Term of the Agreement, e-centives will pay
Excite@Home, on a quarterly basis, *****% of net revenue (gross
revenue less direct third party commissions) generated from the
delivery of offers to any such excess Program Members. This provision
shall apply to net revenue generated during the year following the
end of the calendar quarter in which the names were supplied,
irrespective of the Term of this Agreement.
8. USER DATA DELIVERY PERFORMANCE MEETINGS
The parties will meet on a quarterly basis to review Program Member User
Data record delivery goals and performance and adjust marketing plans and
member signup goals as mutually agreed.
9. EXCITE@HOME PURCHASES FROM E-CENTIVES
a) Excite@Home will purchase in bulk a minimum of $3.75 million in
e-centive packages from e-centives at the rate of $***** per e-centive
delivered for the purpose of resale to Excite@Home's advertisers and
partners. Within 5 days of Launch Date Excite@Home will pay e-centives
a non-refundable minimum of $***** and will continue to pay a
minimum of $***** each quarter, payable at the beginning of the
quarter, during the Term of this Agreement for such packages. Unless
13
<PAGE> 14
*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
sold by Excite within 6 months of purchase, such purchased e-centives
packages shall expire and no longer be available for resale by
Excite@Home. Any purchases beyond the minimum shall be at
Excite@Home's sole discretion. Such e-centive packages shall be
governed by e-centives' standard terms and conditions. To the extent
that Excite@Home elects in its sole discretion to purchase in excess
of $***** in e-centive packages during any quarter, any such excess
purchases shall constitute a credit which Excite@Home may apply
against its minimum purchase obligations in any subsequent quarter(s).
b) Excite@Home will determine, at its sole discretion, the size and
nature of each e-centive package bought under these terms.
Excite@Home shall not be limited to a standard package size.
c) Excite@Home will pay e-centives *****% of net revenue (gross revenue
less $***** purchase price and cost of sales not to exceed *****% of
gross revenues) generated from sales of the e-centives packages.
d) e-centives may not extend exclusive offers developed for Excite@Home
by its advertisers to non-Excite@Home users of the e-centives service
for a period of 30 days following the day on which the offer is first
made available through Excite@Home.
10. USAGE REPORTS
a) Application Provider will provide usage reports to Excite@Home on a
weekly basis in a mutually agreed upon format. At a minimum, usage
reports will include:
i) Transactional Data on all Excite@Home Members who transact
through the Co-Branded Application (where available and as
limited by Section 6.a.iii);
ii) Individual Program Member data, including such information as
user preferences, usage, and response rates;
iii) Daily page views by category; and
iv) Aggregate information on response rates.
b) The usage reports will be co-owned by the parties.
11. TRADEMARK OWNERSHIP AND LICENSE
a) Application Provider will retain all right, title and interest in and
to its trademarks, service marks and trade names worldwide, subject
to the limited license granted to Excite@Home in Section 11(c) below.
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<PAGE> 15
*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
b) Excite@Home will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Application Provider in Section 11(c)
below.
c) Each party hereby grants to the other a non-exclusive, limited license
to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each party's reasonable policies regarding advertising
and trademark usage as established from time to time.
d) Upon the expiration or termination of this Agreement, each party will
cease using the trademarks, service marks and/or trade names of the
other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
12 CONTENT OWNERSHIP AND LICENSE
a) Application Provider will retain all right, title and interest in and
to the e-centives Content worldwide (including, but not limited to,
ownership of all copyrights and other intellectual property rights
therein). Subject to the terms and conditions of this Agreement,
Application Provider hereby grants to Excite@Home a royalty-free,
non-exclusive, worldwide license to use, reproduce, distribute,
transmit and publicly display the e-centives Content in accordance
with this Agreement and to sub-license the Application Content to
Excite@Home's wholly-owned subsidiaries or to joint ventures in which
Excite@Home participates for the sole purpose of using, reproducing,
distributing, transmitting and publicly displaying the e-centives
Content in accordance with this Agreement, provided that no such
sublicensing shall be to Application Provider Named Competitors.
b) Excite@Home will retain all right, title, and interest in and to the
Excite Network worldwide (including, but not limited to, ownership of
all copyrights, look and feel and other intellectual property rights
therein).
13. MAINTENANCE, CUSTOMER SUPPORT AND PERFORMANCE OBLIGATIONS
a) Application Provider shall be responsible for providing all
maintenance and technical support for all Co-Branded Application users
as set forth in EXHIBIT H.
b) Application Provider shall be responsible for meeting the performance
and uptime guarantees for the Co-Branded Application as set forth in
EXHIBIT H.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
14. PUBLICITY
It is the intention of both parties to publicly disclose the nature (but
not the terms) of the relationship following the completion of the
Agreement and other related documents. It is the intention of both parties
to support public releases, whereby an authorized senior executive of both
companies is quoted within the release. Both parties will provide
reasonable and timely support of such releases. Neither party shall make
any publication or issue any press release concerning this document or the
arrangements contemplated without the other party's written approval prior
to release. Notwithstanding the foregoing, Excite@Home agrees to allow
reference to its name and disclosure of the terms of the relationship
between the parties to potential investors and relevant regulatory
authorities for purposes of funding activities by e-centives, which may
include an initial public offering.
15. TERM
The term of this Agreement will begin on the Effective Date and will end
three (3) years from the date the Co-Branded Application becomes
accessible to Excite@Home Members ("Launch Date").
16. TERMINATION
a) Basis for Termination:
i) Either party may terminate if the other party breaches the
Agreement and the breach remains uncured for thirty (30) days
following receipt of written notice of intention to terminate
from the other party.
ii) Excite@Home may terminate the Agreement with thirty (30) days
written notice if Application Provider does not meet the content
and launch guidelines described in EXHIBIT B.
iii) Excite@Home may terminate the Agreement if the Co-Branded
Application is not at least comparable to any other source of
Application Content on the Internet in accordance with the
following provisions:
(1) At any time during the Term of this Agreement, Excite@Home
may determine, in its reasonable judgment, that the
Co-Branded Application is not at least comparable to other
sources of Application Content generally available on the
Internet in terms of the following factors:
(i) Breadth and depth of content;
(ii) Tools and functionality;
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
(iii) Personalization; and
(iv) User interface and ease of use.
(2) If Excite@Home determines that the Co-Branded Application is not at
least comparable to other sources of Application Content generally
available on the Internet in terms of at least two of the four factors
in Section 16.a.iii.1, Excite@Home may notify Application Provider in
writing of said deficiency, which shall initiate a 28-day "Cure
Period." If at the end of the Cure Period Excite@Home, in its
reasonable judgment, determines that the deficiency still exists, then
Excite@Home may terminate the Agreement without further delay.
iv) Either party may terminate the Agreement without penalty upon thirty (30)
days' written notice if regulations or applicable laws applied at the US
federal level regarding privacy or User Data purchase and/or usage impede
or prohibit said party from performing its services as contemplated by this
Agreement or thereafter.
v) In the event that a majority of Application Provider's assets are merged,
acquired or sold to an Excite@Home Named Competitor, or to an entity
controlling or controlled by an Excite@Home Named Competitor, then
Excite@Home may terminate this Agreement by providing thirty (30) days
written notice. This option to terminate this Agreement may only be
exercised by providing written notice within ninety (90) days of
Excite@Home's receiving notice of such transaction. Application Provider
shall provide such notice at least twenty-four (24) hours before the public
announcement of any such transaction.
vi) The parties acknowledge that, due to the continually evolving nature of the
Internet, substantive changes to the product plan and integration
contemplated in the Agreement will likely be necessary during the Term.
From time to time, Excite@Home may require that Application Provider
provide extensions, incremental services and/or integration of the
Co-Branded Application (collectively, "Modifications"). In the event that
Application Provider is unable and/or unwilling to deliver such additions,
or in the event that the parties disagree on the direction of the
Co-Branded Application or its integration, Excite@Home may terminate the
Agreement with no penalty by providing ninety (90) days written notice.
Notwithstanding the foregoing, Excite shall not be entitled to terminate
this Agreement in the event that the requested
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
Modifications exceed or are outside the scope of technology and/or
service levels generally available on the Internet.
b) Effects of Termination
i) Each Party will promptly return all Confidential Information of the
other party.
ii) Each Party will pay all earned and undisputed outstanding amounts owed
to the other Party under this Agreement within thirty (30) days after
the effective date of such termination. Notwithstanding the foregoing,
all payments for User Data records shall be due and accrue in
accordance with terms of this Agreement.
iii) For a period of up to sixty (60) days, Application Provider will
provide consulting services to Excite@Home, as Excite@Home may
reasonably request and for reasonable fees to be paid to Application
Provider, such fees to be agreed upon in writing by the Parties, to
assist Excite@Home in providing a seamless transition to Program
Members. Application Provider will have no obligation to provide such
services to Excite@Home to the extent that Application Provider's
personnel and resources are unavailable in the amounts requested by
Excite@Home or if the Parties are unable in good faith to agree on the
reasonable fees to be paid to Application Provider for such services.
Application Provider will not be required, in the course of providing
such consulting services to Excite@Home, to disclose or transfer to
Excite@Home any proprietary information, software, or Intellectual
Property of Application Provider or any of its merchant partners.
iv) To further ensure a seamless transition for Program Members, in the
event of a termination based upon a material breach by e-centives or
an acquisition pursuant to Section 16.a.v. only, Application Provider
shall continue to host and maintain the Co-Branded Application for a
period of one hundred twenty (120) days following either receipt or
issuance of notice of intention to terminate this Agreement. Such
hosting and maintenance of the Co-Branded Application shall be
provided by Application Provider at such reasonable rates as are
mutually agreed upon by the parties.
v) The provisions of this Section (Termination), Section 17
(Post-Termination Communications), Section 18 (Confidentiality),
Section 19 (Warranties and Indemnities), Section 20 (Limitation of
Liability), and Section 21 (Dispute Resolution) shall survive any
termination or expiration of this Agreement.
<PAGE> 19
*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
17. POST-TERMINATION COMMUNICATIONS
a) Upon termination of this Agreement for reasons other than a
relationship with an Excite@Home Named Competitor under Section
16.a.v., the parties will communicate with Program Members as follows:
i) Excite@Home will email Program Members on e-centives' behalf up
to a maximum of two times. Consistent with other communications
envisioned during the Term of the Agreement, such mailings will
be branded Excite@Home but will alert Program Members that this
Agreement is to be terminated, the Co-Branded Application will
continue with e-centives branding, and Program Members will
continue as a participant in the e-centives service unless they
explicitly opt out. The content and copy of such emails shall be
mutually agreed upon.
ii) The first email will be exclusive to e-centives (i.e., it will
not mention similar services from Excite@Home or other third
parties) and will alert Program Members of the continuation of
the e-centives service directly from e-centives. Program Members
shall be further alerted that their membership in the e-centives
service shall continue unless they explicitly opt-out.
Excite@Home shall not promote competing services in such contact
or otherwise discourage Program Members from continuing to use
the e-centives service as provided directly by e-centives.
iii) The second email will not be exclusive to e-centives. It will
include the same e-centives alerts as in the first email, but may
offer a replacement Excite@Home service and a notification that
the Program Member will remain in such an Excite@Home-provided
service unless they specifically opt-out. Excite@Home shall not
discourage Program Members from continuing to use the e-centives
service directly from e-centives, but may offer an additional
choice. It is conceivable that any one end user customer could
use both services.
iv) Any such communications will be subject to Excite@Home's
then-current privacy policy.
b) In the event that the Agreement is terminated pursuant to Section
16.a.v. due to e-centives' acquisition by an Excite@Home Named
Competitor, or by an entity controlling or controlled by an
Excite@Home Named Competitor, e-centives or its assigns or designates
may not contact any Users for whom User Data has been provided
pursuant to this Agreement, excluding those that have opted out in
accordance with Section 5(a) of Exhibit D. In the event of such
termination, e-centives will not be eligible for any refund of
pre-termination payments made to Excite@Home.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
18. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its suppliers') business
or activities that is proprietary and confidential, which shall
include all business, financial, technical and other information of a
party marked or designated by such party as "confidential" or
"proprietary"; or information which, by the nature of the
circumstances surrounding the disclosure, ought in good faith to be
treated as confidential.
b) Confidential Information will not include information that (i) is in
or enters the public domain without breach of this Agreement, (ii) the
receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure
obligation or (iii) the receiving party knew prior to receiving such
information from the disclosing party or develops independently.
c) Each party agrees (i) that it will not disclose to any third party or
use any Confidential Information disclosed to it by the other except
as expressly permitted in this Agreement and (ii) that it will take
all reasonable measures to maintain the confidentiality of all
Confidential Information of the other party in its possession or
control, which will in no event be less than the measures it uses to
maintain the confidentiality of its own information of similar
importance.
d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required
by law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
e) The information contained in the Usage Reports provided hereunder will
be deemed to be the Confidential Information of each party and will
not be disclosed without the written consent of the other party.
f) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed
without the written consent of the other party.
19. WARRANTIES AND INDEMNITIES
a) Application Provider's warranties and indemnities:
i) Application Provider warrants that it owns, or has obtained the
right to distribute and make available, as specified in this
Agreement, any and all content provided to Excite@Home or made
available to third parties (excluding the Excite Content) in
connection with this Agreement.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
ii) Application Provider warrants that the e-centives Content will
comply, in all material respects, with the description and
technical specifications contained in EXHIBITS A AND B.
iii) Application Provider will indemnify, defend and hold harmless
Excite@Home, its affiliates, officers, directors, employees,
consultants and agents from any and all third party claims,
liability, damages and/or costs (including, but not limited to,
attorneys fees) arising from:
(1) Its breach of any warranty, representation or covenant in
this Agreement; or
(2) Any claim (including, without limitation, claims for
infringement of third party intellectual property,
publicity, or privacy rights) arising from the e-centives
Content, including, without limitation, e-centives'
trademarks, but excluding claims based upon the Excite
Content or any other materials provided by Excite in the
form originally provided by Excite; or
(3) Any claims (including, without limitation, claims for
infringement of third party intellectual property,
publicity, or privacy rights), by third parties arising out
of or based upon e-centives' services and/or any other
service provided by e-centives, but excluding claims based
upon the Excite Content or any other information or
materials provided by Excite in the form originally provided
by Excite.
iv) Application Provider's obligation to indemnify Excite@Home is
conditioned upon Excite@Home promptly notifying Application
Provider of any and all such claims. Notwithstanding the
foregoing, Application Provider shall only be relieved of its
obligation to indemnify Excite@Home to the extent that any such
failure to notify materially and adversely affects Application
Provider's defense. Excite@Home will reasonably cooperate with
Application Provider in the defense and/or settlement thereof;
provided that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to, or prejudices
or detrimentally impacts Excite@Home in any way, and such
obligation, liability, prejudice or impact can reasonably be
expected to be material, then such settlement shall require
Excite@Home's written consent (not to be unreasonably withheld or
delayed), and Excite@Home may have its own counsel in attendance
at all official proceedings and substantive negotiations relating
to such claim at Excite@Home's sole cost and expense.
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<PAGE> 22
*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
b) Excite@Home's warranties and indemnities:
i) Excite warrants that it has the right to distribute and make
available, as specified in this Agreement, any and all content and
User Data provided to e-centives or made available to third parties
(excluding the e-centives Content) in connection with this Agreement.
ii) Excite warrants that the Excite Content will comply, in all material
respects, with the description and technical specifications contained
in EXHIBITS A AND B.
iii) Excite@Home will indemnify, defend and hold harmless Application
Provider, its affiliates, officers, directors, employees, consultants
and agents from any and all third party claims, liability, damages
and/or costs (including, but not limited to, attorneys fees) arising
from:
(1) Its breach of any warranty, representation or covenant in this
Agreement;
(2) Any claim (including, without limitation, claims for infringement
of third party intellectual property rights) arising from the
Excite Content, including, without limitation, Excite's
trademarks, but excluding claims based upon the e-centives
Content or any other materials provided by e-centives in the form
originally provided by e-centives; or
(3) Any claims (including, without limitation, claims for
infringement of third party intellectual property rights), by
third parties arising out of or based upon Excite@Home's services
and/or any other service provided by Excite, but excluding claims
based upon the e-centives Content or any other information or
materials provided by e-centives in the form originally provided
by e-centives.
iv) Excite@Home's obligation to indemnify Application Provider is
conditioned upon Application Provider promptly notifying Excite@Home
of any and all such claims. Notwithstanding the foregoing, Excite
shall only be relieved of its obligation to indemnify e-centives to
the extent that any such failure to notify materially and adversely
affects Excite@Home's defense. Application Provider will reasonably
cooperate with Excite@Home in the defense and/or settlement thereof;
provided that, if any settlement requires an affirmative obligation
of, results in any ongoing liability to, or prejudices or
detrimentally impacts
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
Application Provider in any way, and such obligation, liability,
prejudice or impact can reasonably be expected to be material,
then such settlement shall require Application Provider's written
consent (not to be unreasonably withheld or delayed), and
Application Provider may have its own counsel in attendance at
all proceedings and substantive negotiations relating to such
claim at Application Provider's sole cost and expense.
c) Except as specified in this Section, neither party makes any warranty
in connection with the subject matter of this Agreement and hereby
disclaims any and all implied warranties, including all implied
warranties of merchantability and fitness for a particular purpose
regarding such subject matter.
20. LIMITATION OF LIABILITY
Except as provided by Sections 19(a)(iii)(2), (a)(iii)(3), (b)(iii)(2) and
(b)(iii)(3):
a) Neither party will have liability for any damages other than direct
damages. In no event will either party be liable to the other for any
special, incidental or consequential damages, whether based on breach
of contract, tort (including negligence) or otherwise, whether or not
that party has been advised of the possibility of such damage.
b) Either party's liability for damages shall be limited to the amounts
actually paid by the other party.
21. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names and/or
confidentiality would result in irreparable injury for which there is
no adequate remedy at law. Therefore, in the event of any breach or
threatened breach of a party's obligations regarding trademarks,
service marks or trade names or confidentiality, the aggrieved party
will be entitled to seek equitable relief in addition to its other
available legal remedies in a court of competent jurisdiction. For the
purposes of this Section only, the parties consent to venue in either
the state courts of the county in which Excite@Home has its principal
place of business or the United States District Court for the Northern
District of California.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, the parties will first attempt to
resolve the dispute(s) through good faith negotiation. In the event
that the dispute(s) cannot be resolved through good faith negotiation,
the parties will refer the
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
dispute(s) to a mutually acceptable mediator for hearing in the county
in which Excite@Home has its principal place of business.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, cannot be resolved through good
faith negotiation and mediation, the parties will refer the dispute(s)
to the American Arbitration Association for resolution through binding
arbitration by a single arbitrator pursuant to the American Arbitration
Association's rules applicable to commercial disputes. The arbitration
will be held in the county in which Excite@Home has its principal place
of business.
22. GENERAL
a) Governing Law. The Agreement will be governed by and construed in
accordance with the laws of the State of California, notwithstanding the
actual state or country of residence or incorporation of Application
Provider.
b) Assignment. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be required in
connection with a merger, reorganization or sale of all, or
substantially all, of such party's assets or capital stock. Any attempt
to assign this Agreement other than as permitted above will be null and
void.
c) Notice. Any notice under this Agreement will be in writing and delivered
by personal delivery, express courier, confirmed facsimile, confirmed
email or certified or registered mail, return receipt requested, and
will be deemed given upon personal delivery, one (1) day after deposit
with express courier, upon confirmation of receipt of facsimile or email
or five (5) days after deposit in the mail. Notices will be sent to a
party at its address set forth below or such other address as that party
may specify in writing pursuant to this Section.
d) No Agency. The parties are independent contractors and will have no
power or authority to assume or create any obligation or responsibility
on behalf of each other. This Agreement will not be construed to create
or imply any partnership, agency or joint venture.
e) Audit Rights. A party obligated to make payments and/or provide User
Data hereunder shall keep for 3 years proper records and books of
account relating to the computation of such payments and/or the
compilation and content of such User Data. Once every 12 months, the
party receiving payment and/or User Data records or its designee may
inspect such records to verify for accuracy. Any such inspection will be
conducted in a
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
manner that does not unreasonably interfere with the inspected party's
business activities. In the case of underpayments, the inspected party
shall immediately make any overdue payments disclosed by the audit plus
applicable interest. Such inspection shall be at the inspecting party's
expense; however, if the audit reveals overdue payments in excess of 5% of
the payments owed to date, the inspected party shall immediately pay the
cost of such audit, and the inspecting party may conduct another audit
during the same 12 month period. In the case of inaccurate and/or outdated
User Data, the providing party shall immediately provide accurate User Data
and/or updated User Data (to the extent such party has updated User Data.
f) Force Majeure. Any delay in or failure of performance by either party
under this Agreement will not be considered a breach of this Agreement and
will be excused to the extent caused by any occurrence beyond the
reasonable control of such party including, but not limited to, acts of
God, power outages and governmental restrictions.
g) Severability. In the event that any of the provisions of this Agreement
are held by to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
h) Entire Agreement. This Agreement is the complete and exclusive agreement
between the parties with respect to the subject matter or related matters
hereof, superseding any prior agreements and communications (both written
and oral) regarding such subject matter. Notwithstanding the foregoing, the
Sponsorship Agreement effective on March 5, 1999 that currently is in
force between the two parties to this Agreement shall remain in force, on
an interim basis only, and will terminate at the end of the calendar month
that the Co-Branded Application launches on the Excite@Home Shopping
service without further compensation from either party.
i) Waiver. The failure of either Party to require performance by the other
Party of any provision of this Agreement will not affect the full right to
require such performance at any time thereafter; nor will the waiver by
either Party of a breach of any provision of this Agreement be taken or
held to be a waiver of the provision itself.
j) Modification. This Agreement may only be modified by a written document
executed by both parties.
k) Construction. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or extent of such section or in any way
affect this Agreement.
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<PAGE> 26
*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
l) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS HEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
AT HOME CORPORATION e-centives, INC.
By: ________________________________ By: ____________________________________
Name: ______________________________ Name: __________________________________
Title: _____________________________ Title: _________________________________
Date: ______________________________ Date: __________________________________
450 Broadway 6903 Rockledge Drive, Suite 1200
Redwood City, CA 94063 Bethesda, MD 20817
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
EXHIBIT A
UNTARGETED AND TARGETED OFFERS WITHIN THE CO-
BRANDED APPLICATION
1. DEFINITIONS
a) "Untargeted Offers" are those offers generated from either party's
network of merchant partners, to be extended to all Users for the
benefit of attracting shoppers.
b) "Targeted Offers" are e-centives offers made available only to Program
Members.
2. TREATMENT OF UNTARGETED OFFERS
a) The parties shall establish by mutual agreement prices for the sale
of Untargeted Offers for display in the Co-Branded Application.
b) The parties will share equally all revenue from the sale of
Untargeted Offers sold for display in the Co-Branded Application.
This equal division of revenue shall not extend to any placement of
Untargeted Offers outside the Co-Branded Application. For Untargeted
Offers that appear both on the Co-Branded Application and elsewhere
on the Excite Network, revenue attributable to placement on the
Co-Branded Application shall be calculated based on the price to be
established as set forth in Section 2.a of this Exhibit, and the
parties will share equally such revenue.
c) The price to be established as set forth in Section 2.a of this
Exhibit shall not apply to mass listings of paper or local coupons.
The parties will share equally all revenue from the listing of paper
or local coupons in the Co-Branded Application.
d) Each party shall receive without charge space for twenty (20)
Untargeted Offers each month. This allocation of free Untargeted
Offers may be modified as mutually agreed upon during the Term of the
Agreement.
3. TREATMENT OF TARGETED OFFERS
a) Targeted offers may be viewed by Users, but may not be used by Users
unless they become Program Members.
b) Targeted offers shall be sold as e-centives and charged upon delivery
or display to, or transaction by, a Program Member in the Co-Branded
Application or its associated emails.
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The copy file herewith omits information subject to the confidentiality request.
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c) All Targeted Offers shall be placed above any Untargeted Offers.
d) e-centives Co-Branded Application emails shall contain only Targeted
Offers, and shall not contain Untargeted Offers.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
EXHIBIT B
CONTENT DESCRIPTION AND SPECIFICATIONS
("APPLICATION CONTENT")
The following describes the general product plan for the Co-Branded Application:
1. CUSTOMER OFFERS
a) There shall be four distinct types of offers:
i) Traditional e-centives offers, which are classified as Targeted
Offers;
ii) Excite@Home-exclusive e-centives offers, which are classified as
Targeted Offers;
iii) Other Excite@Home Member exclusive offers, which are classified
as Untargeted Offers;
(1) May be unrelated to e-centives and will have redemption off
the e-centives-hosted experience.
iv) As deemed appropriate by Excite@Home, other offers that may or
may not be exclusive to Excite@Home which are provided as a feed
to e-centives, which are classified as Untargeted Offers;
(1) Required so that Members perceive e-centives-hosted content
as a superset of Excite@Home's traditional content;
(2) Important not to have a binary selection -- non-Excite@Home-
Member-exclusive offers in one area and Excite@Home-Member-
exclusive offers in another -- an unacceptable user
experience.
v) Design cues will be used to differentiate the different types of
offers seen by Members, as shown below:
<TABLE>
<CAPTION>
Anonymous Users Excite@Home Members
<S> <C> <C>
Served by e-centives e-centives
Traditional e-centives offers Yes* Yes
Excite-exclusive e-centives offers Yes* Yes
</TABLE>
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
<TABLE>
<S> <C> <C>
Other Excite@Home Member offers No Yes
Non-Excite@Home-Member offers Yes Yes
</TABLE>
* Must convert to Excite@Home Member status to redeem
b) e-centives will use commercially reasonable efforts to support up to
a combined 10,000 initial offers from Section 1.a.iii and 1.a.iv of
this Exhibit B on the Effective Date of this Agreement. Excite@Home
shall have the right to specify an increased capacity of offer
presentment at its sole option upon giving three months' advance
notice to e-centives at any point during the Term of this Agreement,
presuming such request shall be reasonable.
4. OFFER PLACEMENT
To ensure an opportunity for both parties to have a reasonable chance to
display their own offers within the Co-Branded Application, the following
prioritization of offers shall be made within any content area served by
e-centives:
a) For the first page presented within any shopping category area,
i) All Targeted Offers shall have placement priority above any
Untargeted Offers.
ii) Within the Targeted Offers region, the top 30% of the offer
placement locations on the first page within a category of the
Co-Branded Application (not including banner or sponsorship
placements) will be allocated to Excite@Home exclusive
e-centives offers. The remaining 70% of such first pages, along
with subsequent pages within each category, the offer placement
locations will be split 50%/50% between Excite@Home and
e-centives and will be served in an alternating order.
iii) Similarly, within the Untargeted Offers region, the top 30% of
the offer placement locations on the first page within a
category of the Co-Branded Application (not including banner or
sponsorship placements) will be allocated to Excite@Home. The
remaining 70% of such first pages, along with subsequent pages
within each category, the offer placement locations will be
split 50%/50% between Excite@Home and e-centives and will be
served in an alternating order.
b) For the second and any following pages presented within any shopping
category area, half of the offer placement positions will be
allocated to Excite@Home and the other half will be allocated to
e-centives and the position of said placements on the page shall be
random.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
5. CUSTOMER BRANDING EXPERIENCE
a) Until offer selection is made, branding shall be, at Excite@Home's
option, "Excite" or "Excite@Home" with a tag line "powered by
e-centives."
b) When offer management or redemption occurs, "Excite (or alternately,
Excite@Home, as detailed in Section 3.a of this Exhibit) powered by
e-centives" shall be replaced by cobranding, including full logo
treatment for e-centives. For any branding at the merchant subject to
final merchant approval, e-centives shall use commercially reasonable
efforts to ensure that both Excite@Home and e-centives branding
elements are present.
c) Both traditional e-centives offers and Excite@Home e-centives offers
will contain e-centives branding elements within an application that
is otherwise Excite@Home branded.
d) The Co-Branded Application shall conform to Excite@Home Third-Party
Application standards, including:
i) Page weight;
ii) Presence of advertising banners and/or sponsorship placements
served by Excite@Home/MatchLogic at Excite@Home's exclusive
option;
iii) Color, fonts, layout, design standards, header, footer,
navigational elements, tabbing metaphors, etc.;
iv) Navigational elements directing traffic to non-e-centives content
(e.g., Excite@Home Mail and other Excite@Home Shopping
destinations);
v) Excite@Home's Third-Party Application Standards may change over
the Term of this Agreement. As they do, e-centives may be
required to make periodic design enhancements to comply with
these Standards. Any such required changes shall be reasonable
and shall be materially similar to changes required of other
applications and application providers subject to Excite@Home's
Third-Party Application Standards.
e) The Co-Branded Application shall be designed to appear to the customer
as being Excite@Home; analogs to the goal would be Excite@Home's
sports content area at http://www.excite.com/sports, as it appears on
the Effective Date of this Agreement (see Exhibit C), which is served
by a third-party firm but carries only Excite@Home messaging cues.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
f) Other Excite@Home Member Offers, and Non-Excite@Home-Member Offers,
as highlighted in the matrix in Section 1.b of this Exhibit B, may
also require third-party branding in their presentation.
6. OFFER HIERARCHY SYNCHRONIZATION
a) e-centives does not need to adopt Excite@Home's directory structure
but must use similar categorization methodology. For example, Autos
and Electronics may be categories at the same level in the hierarchy,
but Autos and Cameras would not be at the same level.
b) e-centives must map to Excite@Home's Shopping directory hierarchy,
which may change from time to time during the Term of this Agreement.
c) e-centives must adopt Excite@Home's naming conventions (e.g.
Excite@Home's "Autos" label vs. e-centives' "Automotive" label).
d) e-centives must provide product and/or offer search capabilities that
are comparable to Excite Network offerings, including local (zip
code) and off-line redemption. Any such required capabilities shall
be reasonable and shall be materially similar to capabilities
required of other applications and application providers subject to
Excite@Home's Third-Party Application Standards.
7. PLACEMENT
a) During the first year of the Agreement a persistent "Above-the-Fold"
link shall remain present in the Excite@Home Shopping content area,
or its subsequent replacement, or an equivalent area as determined by
Excite@Home, that directs end users to the Co-Branded Application,
the phrasing of which shall be mutually agreed upon. "Above-the-Fold"
shall mean in a position generally viewable by an end-user customer
using an Internet browser which has been maximized to full screen on
a computer displaying a minimum resolution of 600 x 800 dpi or higher.
b) During the remainder of the Agreement, a prominent and persistent
link shall remain present in the Excite@Home Shopping content area,
or its subsequent replacement, or an equivalent area as determined by
Excite@Home, that directs end users to the Co-Branded Application.
The phrasing of the link shall be mutually agreed upon by the parties.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
EXHIBIT C
LOOK AND FEEL OF THE CO-BRANDED APPLICATION
The screen shot(s) that follow are examples, solely for purposes of
illustration, of the intended look and feel for the Co-Branded Application, as
described in Exhibit B, Section 3.e:
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
EXHIBIT D
OUTBOUND CUSTOMER CONTACTS
1. EMAIL OF ACCOUNT STATUS TO MEMBERS ACQUIRED THROUGH EXCITE@HOME:
a) Excite@Home shall control the look and feel of such emails,
which shall be developed in cooperation with e-centives.
2. WELCOME E-MAILS
a) A Welcome email will be sent to all Qualified Program Members
when they first access the Co-Branded Application, provided
that Qualified Program Members are clearly notified concerning
the sending of such emails at the time of Co-Branded Application
use. All such Welcome emails shall be bound by Excite@Home's security
and privacy guidelines. A Welcome email regarding the Co-Branded
Application will be sent to all General Program Members.
3. THEMATIC OR SUPPLEMENTAL E-MAILS:
a) Excite@Home shall control the timing, strategy, and look and feel of
Thematic and Supplemental emails. Notwithstanding the foregoing,
Excite@Home agrees that emails shall be sent at least once per month
to at least 50% of the Program Members with at least five (5)
merchant offers.
b) Excite@Home shall sell e-centives Thematic or Supplemental emails at
no less than e-centives' then current standard or generally available
discounted email rates. If Excite@Home does not sell such emails, or
all positions within such emails, then e-centives may do so.
c) Excite@Home and e-centives shall share equally all net revenue from
such offers, defined as gross revenue minus third-party serving
costs, which shall not exceed $0.01 per email piece delivered.
4. RECIPROCAL DATA TRANSFER & REPORTING
a) The parties will allocate the production and sending of emails between
them based upon technical considerations to be addressed to both
party's mutual satisfaction. In some instances e-centives will produce
and send the outbound email pieces, and in other cases Excite@Home
will produce and send the outbound email pieces.
b) The determination of which emails shall be sent by which party shall
be mutually determined.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
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c) In all cases, the primary branding on each email will be Excite@Home.
d) Excite@Home will retain full editorial oversight for all mass
distribution mailings contemplated under this Agreement, regardless of
the sending source.
e) Reporting and per-email recipient activity data is desired by both
parties and shall be mutually agreed upon, with both parties agreeing
to provide reporting and per-email recipient activity data that is
reasonably equivalent to that offered by the other party. Each party
shall assume its own costs in both sending outbound email and in
providing necessary reporting and data to the other party.
5. COMMUNICATIONS TO PROGRAM MEMBERS WHO OPT OUT OF FIRST-PARTY CONTACT
a) Excite@Home maintains records concerning whether Excite@Home Users
have opted in or opted out of receiving contacts from Excite@Home
("first-party contacts"). From time to time, Excite@Home Users who
have opted in to first-party contacts may subsequently elect to opt
out of first-party contacts.
b) Excite@Home or a designated agent shall provide notice to Application
Provider when Program Members whose User Data records have been
licensed to Application Provider opt out of receiving any first-party
contacts subsequent to licensing. This notice shall be provided on a
schedule and in a format to be mutually agreed upon.
c) Within forty-eight (48) hours of receiving notice that a Program
Member has opted out of first-party contact, Application Provider
shall:
i) Ensure that future emails to the Program Member do not contain
any Excite@Home branding; and
ii) Ensure that future emails do not direct the Program Member to the
Co-Branded Application. Application Provider may continue to
direct Program Members to http://www.e-centives.com or its
subsequent replacement.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
EXHIBIT E
EXCITE@HOME/APPLICATION PROVIDER NAMED
COMPETITORS
Excite@Home Named Competitors
-----------------------------
AOL Time Warner
Yahoo
Go/Infoseek
Lycos
Snap/NBCi
Ebay
AltaVista
Application Provider Named Competitors
--------------------------------------
CoolSavings.com
IQ.com
BrightStreet.com
ValPak
HotCoupons
Aduo
SuperMarkets Online
Coupons.com (Xadvantage)
Dash
ShoppingList.com
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
EXHIBIT F
PROMOTION ON EXCITE@HOME NETWORK
1. OFFERS
a) The parties will work together to develop mutually agreed upon modules
designed to promote the Co-Branded Application, which may appear on the
Excite.com homepage for some Users.
b) At its discretion, Excite@Home may include up to five rotating links on
the My Excite Start Page ("MESP"). At Excite@Home's discretion,
Excite@Home may include Excite@Home exclusive e-centives offers, non-
exclusive e-centives offers may also get rotation on MESP, or general
calls to action to the Co-Branded Application.
c) At Excite@Home's discretion, links may be included in the "My Services"
module. All decisions regarding this module remain Excite@Home's,
including but not limited to the name and relative placement of the
module on MESP. This module may not remain as a default module on the
page over the entire length of the Agreement.
d) No e-centives branding of any kind will be present on MESP.
2. OFFER CATEGORIES
a) This Section applies to the publicly accessible narrowband offering from
Excite@Home, currently available at http://www.excite.com.
b) Excite@Home intends to use a randomization function to surface offers on
MESP in order to provide category specification by user and to support
dynamic content delivery for each server-refreshed page view. This
technique will support all e-centives categories and personalized user
category filtering, but will not support offers that can appear in
multiple categories or offer weighting.
c) Of all e-centives implementation links on MESP, any single category can
have only one link placement.
d) For a category to be surfaced, there must be three unique offers in that
category. The minimum of three offers per category must remain fresh;
if more than one week has elapsed without new offers being available
then a status message indicating no new offers in the category selected
will appear.
e) To prevent multiple appearances of a single offer on one MESP page view,
every offer must be tagged to only one e-centives category.
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*****Confidential Treatment has been requested for portions of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
3. USER TYPES
a) Anonymous Users and Excite@Home Members with no personalization of the
My Services module:
i) Excite@Home may display two to five links at its sole option. All
e-centives categories will be supported, but each category may
have at most one link.
b) Excite@Home Members with personalization of the My Services module
and/or provision of an e-centives account:
i) Excite@Home may display two to five links at its sole option. All
e-centives categories will be supported, but each category may
have at most one link per page view.
ii) Category surfacing will be based upon users' submitted
preferences.
iii) Excite@Home Members shall retain unilateral control to turn all
offer presentments off.
4. IMPLEMENTATION
a) e-centives shall write the necessary application for Excite@Home
provided API to automate bulk update of available offers into
Excite@Home's Concorde system. The targeted completion date shall be
12-16 weeks from the Effective Date of this Agreement.
b) The placement of e-centives promotional links on the default front
page will be implemented in a test mode for a pre-determined period of
time. Specific success measures, including increases in the conversion
rate of non-Excite@Home-Members to Excite@Home-Members, must be met
prior to making the decision to continue default placement.
c) Access to the e-centives organizer will be from links within Member
Services and Shopping and potentially other locations as well, at
Excite@Home's sole discretion.
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The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
EXHIBIT G
PAYMENT SCHEDULE: EXEMPLAR
The spreadsheet that follows is an example, solely for purposes of
illustration, of the payment provisions set out by Section 7.d.
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The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
EXHIBIT H
MAINTENANCE AND TECHNICAL SUPPORT STANDARDS
1. MAINTENANCE
a) Application Provider shall provide, during 6:00 AM - 6:00 PM Pacific
Time on Application Provider's normal business days, telephone
consulting services to Excite@Home's designated personnel to assist
such personnel in resolving problems, obtaining clarification relative
to the Co-Branded Application and providing assistance regarding
suspected defects or errors in the Co-Branded Application.
b) Application Provider shall also provide after-hours support to
Excite@Home. Excite@Home's use of such support shall be confined to
calls related to Severity 1 and Severity 2 issues as those terms are
defined in this Exhibit I. Application Provider will make all
reasonable efforts to respond to Excite@Home's after-hours support
requests within the standards set out in this Exhibit I prior to the
next business day following receipt of the request.
c) By mutual agreement of the parties, Application Provider shall furnish
qualified personnel for on site assistance to Excite@Home to resolve
problems and to assist in customization.
d) Application Provider agrees to diligently work to promptly correct
defects and errors in the Co-Branded Application. Application Provider
agrees to respond to Excite@Home by using a dedicated contact
telephone number for each support call.
e) Notwithstanding the foregoing, in the case of a system down condition,
(i.e. Severity 1, as defined below) attributable to Application
Provider, Application Provider may utilize other means of
communication for both reporting of errors and the conditions thereof.
f) Application Provider shall respond to and complete correction of
errors, defects and malfunctions, in accordance with the following
schedule:
i) SEVERITY 1: Causes data corruption or system crash or Program
Members or Excite@Home cannot make effective use of the
Co-Branded Application.
ii) SEVERITY 2: Feature does not work as documented, no reasonable
work-around exists and Program Members or Excite@Home have a
critical need for the feature;
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iii) SEVERITY 3 Feature doesn't work as documented, but a reasonable
work around exists or Excite@Home or Program Members do not have
a critical need for the feature;
iv) SEVERITY 4 Enhancement request.
g) Provided that maintenance calls are received within Application
Provider's maintenance hours, Application Provider shall make an
initial response to a Severity 1 maintenance call within two (2) hours
after receipt. Application Provider shall use best efforts to provide
a fix, work around, or to patch Severity 1 bugs within twenty four
(24) hours after the bug is replicated by Application Provider and
confirmed as a bug by Application Provider.
h) Provided that maintenance calls are received within Application
Provider's maintenance hours, Application Provider shall make an
initial response to Severity 2 maintenance calls within four (4) hours
after receipt. Application Provider shall make commercially reasonable
efforts to provide a fix or work around for Severity 2 bugs within
five (5) business days.
i) Provided that maintenance calls are received within Application
Provider's maintenance hours. Application Provider shall make an
initial response to Severity 3 maintenance calls within twenty-four
(24) hours after receipt. Application Provider shall make reasonable
efforts to identify a resolution to Severity 3 bugs within thirty (30)
days.
j) Provided that all maintenance calls are received within Application
Provider's business hours, Application Provider shall make an initial
response to Severity 4 maintenance call within forty-eight (48) hours
after receipt. Severity 4 issues will be dealt with on a case-by-case
basis and no blanket commitments will be made.
k) Excite@Home shall appoint one (1) person as the principal point of
contact for the communication of bugs and errors to Application
Provider and for the receipt of bug and error fixes, work arounds and
updates, if any. Additionally Excite@Home may appoint another person
as a backup of the principal contact.
2. UPTIME GUARANTEE
a) The Co-Branded Application shall not experience more than two outages
(unscheduled downtime) of more than two hours during any one month. In
addition, the Co-Branded Application shall have at least the following
uptime as measured monthly, excluding planned downtime:
i) First six months after launch of the Co-Branded Application:
98.8%.
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ii) Months 7-12 following launch of the Co-Branded Application:
99.4%.
iii) Remainder of the Term of the Agreement: 99.5%.
b) Application Provider will notify Excite@Home within fifteen (15)
minutes of any known and verified unscheduled downtime of the
Co-Branded Application and update the status to Excite@Home each and
every hour until service is back up. Application Provider will
immediately notify Excite@Home when service is restored.
3. SYSTEM PERFORMANCE
a) Latency of any data from the time Application Provider's server
receives a request to serve data to the time when Application
Provider's server begins to serve such data shall be less than or
equal to three seconds, except that latency of login/account creation
shall be no greater than five seconds in at least 90% of all cases,
and in no case shall PIN presentment be in excess of ten seconds,
independent of network or Internet conditions.
b) Throughput of all data being served directly to the end user shall be
sustained at least 50Kbits/sec as measured by Excite@Home's monitoring
stations in at least 80% of all monitored cases.
4. PERFORMANCE MEASUREMENT
a) Application Provider shall provide outage reports to Excite@Home upon
request.
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Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
EXHIBIT I
APPLICATION PROVIDERS DATA RESTRICTED NAMED COMPANIES
Netcentives
MyPoints.com
Cybergold
beenz.com
YesMail
Lifeminders
Net Creations
Double Click
24/7
Net Perceptions
Engage Technologies
Broadvision
Personify
Andromedia
Befree
Linkshare
Brodiq
Q-Pass
Younology
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The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
*****